HREOC Annual Report 2004-05 Chapter 7: Disability Rights
The full Commission Annual Report is also available in Word and PDF formats.
Statement from the Commissioner
Dr Sev Ozdowski OAM - Acting Disability Discrimination Commissioner
This report covers my fifth year acting as Disability Discrimination Commissioner and the 13th year of the Disability Discrimination Act (DDA).
Last year, I welcomed confirmation by the Productivity Commission of the important and continuing role of the DDA in providing a fairer go for Australians with disabilities, in its review of the Act. This year, we have welcomed commitments by the federal Government to implement most of the recommendations of that review, in part or in full.
The position of Australians with disabilities remains far from equal in many areas. This may be explained by saying that the DDA is still relatively new and that 13 years is not a long time in achieving major social changes, in attitudes, behaviour, systems and infrastructure.
However, I am proud of the substantial range of work the Commission has undertaken in the past year to advance human rights and equality for people with disabilities. This work, including progress in the demanding processes of developing and implementing Disability Standards is detailed in the body of this report. In this statement, I would like to highlight work in two important areas: mental health and employment.
A major area of work in 2004-05 has been national consultations on mental health and human rights which I conducted in conjunction with the Mental Health Council of Australia and the Brain and Mind Research Institute. These consultations follow from the Commission's landmark report in the 1990s on human rights and mental illness ( 'The Burdekin Report' ).
When I commenced as Human Rights Commissioner in 2000, I saw many reports indicating a situation of ongoing crisis in access to effective mental health services. While I was reluctant to simply add to this pile of reports, community members continued to voice their ever increasing concerns to me. As a result, I became convinced that the Commission needed to be involved in a major project in this area again, to refocus debate on the issue as it involved matters of human rights, and to draw public and political attention as a means of promoting accountability and remedies where abuses or neglect of human rights were found.
The consultations included 20 open community forums in each state and territory, meetings with community, professional and non-government groups, and received around 360 submissions. A detailed report should be ready for release in September 2005. The time taken to produce this report reflects the fact that the number of people who wanted to participate in the consultations and provide submissions by far exceeded what my partners in this process and I had anticipated. I appeared before the Senate Inquiry on Mental Health in May 2005 together with our partners in the consultations to give evidence on what we had heard.
In the last report I noted a particularly concerning lack of progress in employment outcomes for people with disabilities, and referred to the possibility of a public Inquiry in this area. It is clear that Australians with disabilities are missing out on opportunities to develop and use their skills and capabilities, and to earn a decent living for themselves and their families. Only 53% of people with disabilities who are of a working age are in the workforce, compared to 80% for other Australians. They also have a higher unemployment rate than other Australian workers and lower incomes.
After extensive consultation with interested parties, the Commission publicly announced an Inquiry on disability and equal opportunity and participation in employment on 4 March 2005. The Inquiry will report before the end of this year. It will focus on barriers that face people with disabilities, but also investigate how to reduce barriers and difficulties that face employers in recruiting, retaining or fully utilising employees with disabilities.
I intend for this Inquiry to work constructively with employers, government, the disability community and other relevant sections of society to identify and gain consensus on measures that will make a practical difference to employment outcomes for people with disabilities. It is pleasing to note that one issue highlighted by the Inquiry - the need for easier access to information and advice for employers and other interested parties on making adjustments in workplace facilities and practices to accommodate employees with disabilities - has already been addressed by the federal Government in the recent Budget. I look forward to similar progress on other aspects of employment issues through the course of the Inquiry.
Finally, it is important to note that these and other priority areas of our work have resulted from, and been shaped by, input from thousands of individuals and organisations around Australia in the disability community, as well as people in industry and government.
Consultation with such a wide range of people is in my view an essential part of our human rights work and an important role for a statutory officer in a human rights commission. I thank everyone who has shared their insights over the last five years and contributed to the Commission's work in pursuing a more inclusive society.
Deputy Disability Discrimination Commissioner
Mr Graeme Innes AM continued to serve on a part time basis throughout 2004-05 as Deputy Disability Discrimination Commissioner.
Promotion of awareness, understanding and compliance
Most of the Commission's awareness and compliance promotion work in the disability area is connected to policy work and legislative development and is reported on under those headings accordingly.
Public use of the disability rights area of the website continues to be strong; with 597 935 page views recorded on the disability rights web pages in this period. Publications are also distributed in print and other formats on request.
In November 2004, the Disability Discrimination Commissioner launched 'Missed Business' , a guide for small business on ways to be more accessible to customers with disabilities. The guide was developed jointly with Marrickville Council in NSW. Other local governments have been invited to use the material to produce guides for their own local businesses and a number have already done so.
Work has commenced on a similar guide to assist people who organise events such as conferences, festivals and AGM's, to make these accessible for people with a range of disabilities. This work is being done in partnership with the peak body Meetings and Events Australia.
Action Plans under the Disability Discrimination Act
Action Plans under the Disability Discrimination Act provide an important mechanism for organisations to structure their own compliance efforts.
As at 30 June 2005, 337 plans were registered with the Commission (increased from 320 in June 2004), comprising 40 business enterprises, 40 non-government organisations, 35 federal Government, 45 State and Territory Government, 135 local government organisations and 44 education providers. The register of Action Plans, and those plans provided electronically to the Commission (295 of the total), are available on the website. This register assists other organisations interested in developing their own plans and individuals interested in assessing the effectiveness and implementation of an organisation's Action Plan. A number of organisations have also submitted revised plans or implementation reports.
Research and policy
Mental health and human rights
Community consultations on mental health and human rights issues are referred to in the Commissioner's statement.
Employment and Disability Inquiry
As noted in the Commissioner's statement, the Commission commenced an Inquiry on employment opportunity and participation for people with disabilities in March 2005. As at June 2005 over 120 submissions had been received and a number of forums conducted involving employer and disability sector organisations, as well as relevant federal Government departments and agencies. An interim report is to be issued in August 2005.
Discussion of possible international convention
A working group of the United Nations General Assembly is considering a possible international convention on human rights and disability. In sessions in July 2004 and January 2005, support for the development of a convention continued to strengthen. While there remain diverse views (among governments and non-government participants) on the appropriate approach to a number of important issues, there has been substantial progress in negotiating a draft text. The role of the Australian delegation (which the Commission is part of) has been widely recognised as important and positive. Also important has been the contribution of Australian non-government representatives from the disability sector, facilitated by funding from the Attorney-General's Department. The Commission intends to continue participation in this process to the maximum extent permitted by available resources.
Access to electronic commerce
During 2004-05, the Commission, in conjunction with disability organisations and the Australian Bankers Association, conducted a review of the implementation of Voluntary Industry Standards on Banking Accessibility. The report of this review is due for release later this year.
Access to education materials
The Commission has continued to promote progress in removing barriers to information access caused by copyright regimes and practices, and for developments in technology to be used to enable the production of information in accessible formats. The Copyright and Publishing Roundtable, which the Commission established in 2003, produced a useful consolidation of information relating to copyright and print disability. This work has stimulated a further research project to develop guidelines for publishers, producers of accessible-format material and consumers, covering all aspects of the interface between copyright and print disability. The project is being funded by the Copyright Agency Limited and the Commission has had significant input into the information being gathered. At the time of writing, draft guidelines on copyright and print disability were under discussion between copyright administrators, producers of accessible-format materials and consumers.
Health access
Following the national forum on access to health services for people with disabilities convened by the Commission in May 2004, the Commission, in conjunction with the Royal Australian College of General Practitioners (RACGP), convened a meeting of representatives from national disability peak organisations and national general practice representative organisations in June 2005 for further discussion of health access issues. This included relevant aspects of the RACGP's Standards for General Practices. Work in this area will continue in 2005-06.
Insurance
In March 2005, a revised edition of the Commission's guidelines on insurance under the DDA was issued, to take into account developments since first issuing guidelines in this area in 1999 (this includes the important Federal Court decision in QBE v Bassanelli).
Telecommunications
In June 2005, the Commission released a report on progress in improving access to telecommunications for people with a disability since the forum which the Commissioner convened in November 2003. Encouraging progress has been made in some areas and useful mechanisms for ongoing discussion have been established.
Issues that require further attention include:
- all but the most basic features of mobile phones remain largely inaccessible to blind users other than by purchasing much more expensive equipment;
- access for deaf people and people who have a hearing or speech impairment is falling behind that available to other members of the community as traditional TTY equipment is becoming difficult or impossible to interface with mobile phones and internet telephony networks;
- customer information on accessibility features;
- access to video communications for Auslan users (Auslan being a visual language); and
- further regulatory or quasi-regulatory development, to ensure that as far as possible, new telecommunications products and services are accessible, rather than people with disabilities always having to play catch up.
Web access
Website accessibility continues to be a significant concern for various groups of people with disabilities. The Commission receives frequent requests for guidance from government and business organisations on requirements, methods and policies for achieving accessible web pages. The World Wide Web Disability Discrimination Act Advisory Note is one of the most frequently used documents on the website. The Commission also continues to contribute to selected conferences in this area.
Exemptions
Under section 55 of the DDA, the Commission has power to grant temporary exemption from provisions of the Act which make discrimination unlawful. The exemption applications policy is available on the Commission's website or on request.
The Commission sees the temporary exemption mechanism as an important means for managing the process of transition over time, from discriminatory and inaccessible systems and environments, to inclusive, accessible non-discriminatory systems and environments.
Exemption processes are open to public participation through online publication of the Commission's notice of inquiry and details or text of applications, and also publication of submissions from interested parties.
La La Land Byron Bay
An exemption was granted on 5 May 2005 for a period of 12 months concerning disability access to the upper floor premises occupied by La La Land Pty Ltd, on condition that work to provide such access be commenced and substantially completed within that period.
In previous decisions the Commission had indicated that it is not appropriate to grant exemptions purely to certify the existence of unjustifiable hardship on financial or other grounds, nor is it appropriate use of the Commission's power under section 55 of the DDA to override local government's power to approve or decline buildings for use. However, the Commission has been prepared to grant exemptions on condition that the applicant makes and meets commitments to provide access within a reasonable period, as was the case in this instance.
Oxford Hotel, Casino
On 6 April 2005, an exemption was refused regarding access to the Oxford Hotel, Casino. The Commission noted that while the applicant's contentions that it would involve unjustifiable hardship to provide access to the first floor (given site constraints and financial factors) might be correct, these factors may be used to argue a possible unjustifiable hardship defence in the event of complaints and it was not appropriate to use the exemption power purely to certify unjustifiable hardship.
Bendigo Trams
On 28 January 2005, an exemption was granted to the Bendigo Trust for tram services in Bendigo from relevant provisions of the Disability Standards for Accessible Public Transport, and from sections 23 and 24 of the DDA, in so far as those provisions would prevent installation of one tram stop using kerb side boarding, for a period of three years. The exemption was granted on condition that during the exemption period the applicants install four tram stops compliant with the Disability Standards for Accessible Public Transport, as proposed in their application. Also, that the applicants report to the Commission within 12 months on options for providing access where kerbside boarding is used, including through modification of tram vehicles to provide lifts or hoists.
The Commission noted that the application did not simply seek permission to do nothing, based on unjustifiable hardship. The proposed project involved moving from a position where one out of four stops provide access for people using wheelchairs and other passengers with similar mobility requirements, to a position where access would be provided at three out of four new stops, and five stops out of eight overall.
Coffs Harbour Travel And Tours Service
On 21 September 2004, an exemption was granted to Mr G. Kinny from relevant provisions of the Disability Standards for Accessible Public Transport and from sections 23 and 24 of the DDA, insofar as they would prohibit operation of a public transport and tour service with a new vehicle lacking wheelchair access, until 1 December 2007. The exemption was granted on condition that on or before this date, wheelchair access is provided by replacement or refitting of the vehicle. The Commission accepted arguments that while it would not be appropriate to automatically grant exemptions to permit introduction of new inaccessible vehicles in exchange for an accelerated program of phased compliance (compared to the targets set in the Standards), an exemption was justified in this instance having regard to specific evidence of potential hardship which would otherwise be incurred, commitments to upgrade access within three years and the single vehicle fleet involved.
Murranumbla Bed and Breakfast
On 21 September 2004, an exemption was granted from sections 23 and 24 of the DDA, for a period of 18 months, regarding disability access to bathroom facilities at a proposed bed and breakfast facility. The exemption was granted on condition that within 12 months of the date of this decision the operators commence work to provide accessible bathroom facilities, and complete that work within 18 months of the date of the exemption. The Commission considered that it was regrettable that such a small scale development found it necessary to approach the national human rights commission for approval through the exemption process rather than issues of this kind being able to be resolved through local approval processes, but that pending greater harmonisation of discrimination law and building and development approval processes (including through finalisation of Disability Standards in this area), the Commission is required to determine exemption applications of this kind on their merits when such applications are made.
Legislative development
Disability Standards
The DDA provides for 'Disability Standards' to be made by the Attorney-General in specified areas. These currently include: accommodation, administration of Commonwealth laws and programs, education, employment; and public transport. Contravention of a Disability Standard is unlawful under the Act.
The Commission supports adoption of Disability Standards as offering potential to increase certainty and clarity of rights and responsibilities for relevant parties, and thereby advance the objects of the Act. The Commission has a function under the DDA to advise the Attorney-General regarding the making of Standards. To date, it has performed this function by practical participation in Standards development processes, rather than by way of formal reporting.
Access to premises
The Commission has continued to work intensively with the Australian Building Codes Board and industry, community and government members of the Building Access Policy Committee established by the Board, towards the development of Disability Standards on Access to Premises. This would permit adoption under the DDA of content developed by the mainstream building regulatory regime and would provide industry, local government and other parties with a clearer and more coherent set of rights and responsibilities.
The Building Access Policy Committee completed its discussions in April 2005 and its final report was considered by the Australian Building Codes Board in May. The Committee was not able to find consensus on a number of issues, including access to small low-rise buildings, location of accessible toilets and certain aspects of circulation spaces. The final meeting of the Committee also included discussion about the inclusion of Class 2 (flats and apartments) and Class 1b (B and holiday homes) buildings in the proposed Premises Standard. The Commissioner wrote to the Board expressing views on those issues where consensus could not be achieved. This letter was followed up by a number of meetings with Board members to clarify the issues raised. The Attorney-General and colleagues in state and territory anti-discrimination agencies were also provided with an update of progress.
As at June 2005, the Board was still finalising its report, including recommendations and options, to the Attorney-General. Once these recommendations are available, the Commission will have a formal role in providing advice to the Attorney on the appropriateness of adopting particular Standards, including their consistency with the objects of the DDA.
Education
Amendments to the DDA associated with the draft Disability Standards for Education were passed on 9 February 2005. The amendments addressed a drafting error in the original legislation, by making clear that issues of unjustifiable hardship in providing equal access in particular cases can be considered at all stages, rather than only at enrolment and admission. The amendments also confirmed that Standards under the Act can provide for positive measures to provide equal opportunity for students with disabilities and to prevent harassment.
Following this, Disability Standards for Education were tabled for approval on 17 March 2005. The Commission is aware of some remaining community concerns about aspects of the Standards, but has publicly supported them entering into force as soon as possible in view of the lengthy process to date. It is the Commission's view that on balance the Standards will contribute positively to equality in educational opportunities and that concerns can be addressed through appropriate guidance material, and if necessary through subsequent fine tuning amendments (as done with the Disability Standards for Accessible Public Transport).
These amendments and standards came into effect in August 2005.
Public transport
Discussions have commenced through the Accessible Public Transport National Advisory Committee of processes and issues for the five-year review of the Disability Standards for Accessible Public Transport. The Commission has stated its view that the aim should be to have this review complete, or at least well under way, by the five-year point in 2007.
Productivity Commission review
The review of the DDA by the Productivity Commission was released in July 2004. The government issued a response in January 2005 which accepted the majority of the recommendations in whole or part. The Commission publicly welcomed the response, in particular the commitment to legislate, to confirm obligations, to make reasonable adjustments in employment and other areas, and have begun work towards assisting in implementing the government's response.
Speeches
Attached is a selection of speeches made by the Commissioner during 2004-05. Selected speeches and papers are available on the Commission's website at: www.humanrights.gov.au/disability_rights/speeches/speeches.html
Speeches listed were presented by Commissioner Ozdowski except where otherwise noted.
- Presentation to the DEWR Employer Roundtable, Melbourne, 13 July 2005.
- 'Mental Health and Human Rights in Regional Australia in 2005' , Small Towns Conference, Centre for Sustainable Regional Communities, La Trobe University, Bendigo, 11 July 2005.
- 'People with Disabilities and Productive Diversity in the Australian Public Service' , Australian Public Service Commission one-day diversity conference, Brisbane, 8 June 2005.
- 'Mental Health and Human Rights: the state of play in 2005' , Comprehensive Area Psychiatrists Special Interest Group, Rozelle Hospital, 17 May 2005.
- 'Healthy Solutions for Children: Making the Right Choice' , Association for the Welfare of Child Health (AWCH) 2005 Conference, Parramatta Carlton Hotel, 28-29 April 2005.
- 'Software Accessibility: It's Everybody's Business' , Presentation to Australian Taxation Office Software Development Group, Sydney, April 7 2005 (Bruce Maguire).
- Presentation to Accessible Arts Workshop, Sydney Opera House, 10 December 2004 (Bruce Maguire).
- 'Missed Business' , Launch of HREOC/Marrickville Council Guide, Marrickville, 29 October 2004.
- 'The draft United Nations Convention on Human Rights and Disability' , Annual General Meeting of People with Disability Australia, Sydney, 27 November 2004.
- Workshop on Employment Issues, ACROD National Convention, Brighton (Sydney), 24 November 2004.
- 'Risky Business? Occupational Health and Safety and the Disability Discrimination Act' , Employers Making a Difference Seminar, Sydney, 27 October 2004.
- 'Disability Discrimination Developments' , Australian Industry Group National PIR (Personnel and Industrial Relations) Conference, Canberra, 26 October 2004.
- 'Mental Health Reform in South Australia' , Press Conference convened by Australian Nurses Federation, 19 October 2004.
- 'Pokemons in the Amazon Jungle: Web Accessibility, Disability Discrimination, and the WOW Factor' , Presentation to Web Essentials 2004 Conference, September 30, 2004 (Bruce Maguire).
- Launch of Western Australian Government Accessing Abilities Strategy, Perth, 15 September 2004.
- Disability Enterprises Annual Meeting, Leura, NSW, 30 July 2004.
