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Contents
Summary
of recommendations
About
the Physical Disability Council of
NSW
Who
is covered by the DDA?
What
areas of activity are
covered?
Discrimination
Temporary
exemptions
Reasonable
adjustment & unjustifiable
hardship
Determining
that disability discrimination has
occurred
A
new duty to make reasonable
adjustment
Unjustifiable
hardship
Eliminating
discrimination
Competition
and economic effects
Omnibus
legislation
Disability
Standards
HREOC
guidelines and advice
Disability
Action Plans
Industry
self-regulation
Complaints
Measuring
effectiveness
Recommendations
- PDCN recommends that the
Productivity Commission initiate discussion with
a view to re-formulating the definition of
disability used in the DDA. The Act should be
driven by a definition of disability that is
drawn from a social model of disability rather
than a medical model of disability. (Section
2)
- PDCN recommends the end
to all areas of exemption to the DDA. (Section
3)
- PDCN recommends that the
concept of structural or institutionalised
disability discrimination should be added to the
DDA or incorporated within the existing
definition of indirect discrimination. (Section
4.3)
- PDCN recommends that
temporary exemptions be abolished. They are not
a mechanism for accelerating or managing change
(from discriminatory behaviour to
non-discriminatory behaviour) by providers of
goods or services. (Section 5)
- PDCN recommends that
there needs to be a much clearer separation of
three concepts within the DDA:
- disability
discrimination;
- reasonable adjustment;
and
- defence against or
mitigation of a requirement to make a
reasonable adjustment, of which
"unjustifiable hardship" is but one type of
defence. (Section 6)
- PDCN recommends that the
DDA should be amended to introduce a duty to
make a reasonable adjustment. This duty should
apply to all providers of goods and services,
including employment and access to premises.
(Section 8)
- PDCN recommends that
anti-discrimination laws remain distinct and
separate but share a common commitment to
eradicate discrimination in whichever way it is
made manifest. (Section 12)
- PDCN recommends that the
role of people with disability within the
processes for developing DDA Standards be
enhanced. (Section 13)
- PDCN recommends that
mandatory monitoring requirements be
incorporated within all DDA Standards. (Section
13)
- PDCN recommends that
"unjustifiable hardship" be removed from DDA
Standards because its inclusion undermines the
intention that DDA Standards be seen as minimum
requirements. Unjustifiable hardship would
remain a concept recognised within the DDA.
(Selection 13)
- PDCN recommends that the
current conflict of interest between HREOC roles
as a source of formal guidance and a complaints
mediator be terminated. (Section 14)
- PDCN recommends that
Disability Action Plans become a mandatory
requirement placed on most legal entities.
(Section 15)
- PDCN recommends that no
temporary exemption (if they continue to exist)
should be granted to an applicant that does not
possess a Disability Action Plan. (Section
15)
- PDCN recommends that some
agency, perhaps, HREOC be adequately resourced
to establish and sustain a monitoring regime of
Disability Action Plan implementation. (Section
15)
- PDCN recommends that
there should be no change to the DDA to permit
self-regulation. (Section 16)
- PDCN recommends that
HREOC be charged with a duty to become an
advocate for the protection of the right to live
free from disability discrimination,
relinquishing its role as a mediator if
necessary to eradicate conflict of interest.
(Section 17)
- PDCN recommends that
HREOC be empowered to initiate complaints.
(Section 16)
1. About
the Physical Disability Council of
NSW
PDCN is the peak
body representing people with physical
disability in New South Wales. We are part of a
network, which makes up the membership of the
Physical Disability Council of Australia. At
least 75% of the members of PDCN must be people
with a physical disability. We believe,
therefore, that what we say and the
representations we make to Government are based
on the direct experience of people with
disability. We are, we believe, an 'expert
organisation'.
PDCN operates
democratically as part of an effective network
of disability sector organisations. We work
collaboratively with agencies that share common
goals. We strive to bring about significant,
permanent and positive changes in the
circumstances of people with disability. Our
goal is to secure equal civil and human rights
for people with disability.
- PDCN assists people
with physical disability to represent
themselves and express their own points of
view to decision-makers in all
sectors.
- PDCN helps to keep
people with disability informed of
developments of all types that might affect
the lives of people with
disability.
- PDCN represents the
views and interests of people with disability
to government and non-government
decision-makers.
- PDCN works to educate
members of the general public about the needs
and aspirations of people with
disability.
Membership of PDCN is open
to individuals with a physical disability living
in NSW and to any person or organisation with a
commitment to consumer rights and the
empowerment of people with disability. PDCN's
Management Committee has twenty-one members,
most of who are people with physical disability.
Parents of children under 16 years of age are
members of our committee. One third of the
committee places are reserved for people with
physical disability who are not resident in
greater metropolitan Sydney.
The NSW Department of
Ageing Disability and Home Care fund PDCN. We
employ four members of staff, based in our
office in Glebe.
2. Who is
covered by the DDA?
PDCN supports a
broad definition of disability. We feel,
however, that the current definition in the DDA
is inadequate.
The Act defines disability
in terms of functional impairment based on a
medical model of disability. We favour a
definition based on a social model of
disability.
Erroneously, we feel, the
Act defines and locates the concept of
disability, which is a social construct, as
matter of individual "physical, intellectual,
psychiatric, sensory, neurological or learning"
impairments. These impairments are real rather
than socially constructed. The fact of
impairment is not synonymous with
disability.
The definition used in the
DDA must be re-formulated to respond more
appropriately to the lived experience of people
with disability, now and in the foreseeable
future. The definition of disability used by the
Act sits, in one sense, at the core of its being
or purpose. The Act should, therefore, be driven
by a definition of disability that is drawn from
a social model of disability rather than a
medical model of disability.
We recommend that the
Productivity Commission initiates discussion
with a view to re-formulating the definition of
disability used in the DDA. We believe that a
substantial body of theory exists to support our
call for the re-formulation of the Act's
definition. In particular, we draw the attention
of the Commission to definitional work that has
been carried out by the Union of the Physically
Impaired Against Segregation. We paraphrase
their approach thus:
Impairment
means lacking all or part of the functional
capability of a limb, organism or mechanism
of the human body.
Disability means the
disadvantage or restriction caused by a
contemporary social organisation, which takes
no account or little account of people who
have impairments and the functional or
behavioural consequences of those
impairments, leading to social exclusion or
resulting in less favourable treatment of and
discrimination against people with
impairments.
Therefore people with
disability are people with impairments who are
disabled by barriers in society. Our central
theme in this definition is that disability is
external to the individual and is a result of
environmental and social factors.
A re-formulated definition
of disability in the DDA would be based upon the
social model definition cited above. For the
purposes of clarity of interpretation the Act
would be required to articulate and specify the
impairment types deemed to be covered by the
Act. These would not be diagnostic specific but
broader categories not unlike those currently
used in the DDA
3. What
areas of activity are covered?
PDCN takes the view
that there ought to be a whole of society
approach to the prohibition of disability
discrimination. We can see no justification,
therefore, for exemption of any aspect of civil
society from anti-discrimination
legislation.
By arguing for the ending
of the current, partial application of
anti-discrimination legislation we are not
seeking to adopt a fanciful, unrealisable or
absurd position. We are not arguing, for
example, that completely blind people have a
right to be bus drivers or that C5/6
quadriplegics have an entitlement to be front
line troops in the Australian Defence Force.
With regard to the latter example, however, it
is clear to PDCN that a similar prohibition
would not be justifiable with regard to all
people with disability.
We believe strongly that,
in circumstances akin to those we describe here,
there would be job-related determinants, such as
non-discriminatory essential selection criteria,
for specific employment tasks. These would
permit the correct balance to be struck between
the rights and responsibilities of all
stakeholders.
Similarly, if actuarial
evidence exists to support a view that an
individual, by virtue of her or his impairment
alone, is likely to be more costly to insurers
or superannuation providers we would expect that
an acceptable defence could be constructed by
providers to justify different treatment of
particular people with specific
impairments
As a consequence of the
above we urge the Productivity Commission to
recommend the end to all areas of exemption to
the DDA. Specifically we call for exemptions to
cease in the areas of:
- superannuation and
insurance;
- actions taken under
prescribed Acts;
- infectious
diseases;
- charities;
- telecommunications
services;
- pensions and
allowances;
- migration;
- combat
duties;
- peace keeping services
by the Australian Federal Police;
and
- housing.
In arguing for these
exemptions to be ended we do not advocate
'blanket' application of unrealisable outcomes.
We propose, instead, a shift of paradigm for the
DDA.
We believe strongly that
civil society in all its aspects and
manifestations should regard anti-discriminatory
practices and demonstrable commitment to
equality of opportunity as the 'default values'
of social organisation. There should be placed
on all social actors an assumption or
impetrative of anti-discriminatory behaviour.
Any and all variations should be considered on a
case-by-case, individualised basis within the
provisions of a DDA that is comprehensive and
holistic.
4.
Discrimination
PDCN welcomes the
recognition and definition by the DDA of both
direct and indirect discrimination. We believe
that the Act needs to be strengthened, however,
with the inclusion of definition of what might
be termed 'structural', 'systemic' or
'institutionalised' discrimination.
4.1
Direct Discrimination
There is a clear
requirement for the concept of direct
discrimination. No person or organisation should
be permitted by law to treat people less
favourably by virtue of their physical,
intellectual, psychiatric, sensory, neurological
or learning impairment.
In some senses this type
of behaviour has become less prevalent, less
often cited by people with disability and less
manifest in civil society. In making such an
observation we do not wish the Productivity
Commission to understand us to be saying that
there is less disability discrimination around
than there has been in the past. We assert,
rather, that the forms taken by discrimination
are more subtle, less easy to pin down and may
not always lend themselves easily to
illustration through demonstrable
behaviour.
So, while there remains an
undiminished requirement for the concept of
direct discrimination to exist, it may be less
and less common to find discriminators
asserting, verbally or in writing, examples such
as:
- We do not admit people
who use wheelchairs to our
cinema.
- We do not serve
patrons with an intellectual
disability.
- Guide dogs are not
permitted in this establishment.
- We do not employ
people who use crutches and
callipers.
PDCN notes with particular
concern, however, the current legal dispute
between Purvis and the NSW Education and
Training Department. The State's defence, in
which the specified impairment of the person
with disability is not an issue but behaviour
attributable to that impairment justifies
grounds for legal less favourable treatment, is
deeply troubling. The Court will decide whether
or not this argument is consistent with a
technical interpretation of the letter of the
law of the DDA. It seems manifestly clear to
PDCN, however, that the State's position amounts
to a flagrant disregard of the spirit of the Act
and intention of Parliament when it passed the
DDA.
4.2
Indirect Discrimination
PDCN supports the
inclusion of indirect discrimination within the
DDA (noting, for example, the contrast with
similar legislation in the UK, which does not
admit the concept). We feel strongly that people
with disability benefit from the recognition by
Australian law of indirect
discrimination.
It can often be more
likely that the effects of indirect
discrimination rather than direct discrimination
will disadvantage people with disability. A few
examples help to illustrate our
point.
- It is still true that
most job vacancies are not filled through
public advertising. 'In-house' or 'word of
mouth' recruitment practices still operate
across large swathes of employment
(particularly in the private sector).
Historically and comparatively people with
disability have been excluded from and
disadvantaged within the employment market.
In-house and word of mouth recruitment
practices perpetuate an unequal status quo
even though both may appear to be value free
or disability discrimination neutral. This
type of indirect discrimination needs to be
challenged more vigorously.
- Allegedly neutral
policies, which purport to treat everyone in
the same way, can discriminate against
historically marginalised groups. For
example, if a university faculty issues
learning materials to all students on the
same basis it may indirectly discriminate
against students with a visual impairment if
no alternative format is available.
Similarly, the requirement that jurors are
the only people allowed to sit in a jury room
may discriminate against people with physical
disability with a need for personal
assistance or hearing impaired people who
communicate through an Australian Sign
Language interpreter.
4.3
Systemic or Institutionalised Disability
Discrimination
In addition to direct and
indirect discrimination, PDCN believes that
structural, systemic or institutionalised
discrimination exists. The lives of people with
disability are unreasonably, sometimes
unwittingly or unintentionally, constrained by
such discrimination. The concept has been
described in relation to various forms of
discrimination, often in relation to race and
gender. PDCN believes that structural or
institutional discrimination blights the lives
of people with disability in similar
ways.
Institutionalised
discrimination may be described thus:
The collective
failure of an organisation to provide an
appropriate and professional service to
people because of their physical,
intellectual, psychiatric, sensory,
neurological or learning impairment. It can
be seen or detected in processes, attitudes
and behaviour which amount to discrimination
through unwitting prejudice, ignorance,
thoughtlessness and stereotyping which
disadvantage people with disability. It
persists because of the failure of the
organisation openly and adequately to
recognise and address its existence and
causes by policy, example and leadership.
Without recognition and action to eliminate
such discrimination it can prevail as part of
the ethos or culture of the organisation.
(Based on a definition of
institutionalised racism articulated by the
report of Sir William MacPherson's inquiry
into the murder of Steven Lawrence,
Stationery Office, UK. 1999)
PDCN believes that the
concept of structural or institutionalised
disability discrimination should be added to the
DDA or incorporated within the existing
definition of indirect
discrimination.
5.
Temporary exemptions
Our view on this
question is straightforward. PDCN believes that
there is no purpose served by temporary
exemptions. They are not a mechanism for
accelerating or managing change (from
discriminatory behaviour to non-discriminatory
behaviour) by providers of goods or
services.
We understand that HREOC
has taken the view that temporary exemptions are
sometimes required and/or desirable to protect
the interests of service providers from
unreasonable, unjustifiable or malicious
complaints during a period of transition. HREOC
has indicated that the existence or development
of a credible Disability Action Plan would be
(or almost be) a necessary corollary of granting
an exemption.
PDCN believes that
temporary exemptions are unnecessary and
unreasonable. They delay actions that might
occur more quickly. We feel strongly that
providers of goods and services are adequately
protected from unreasonable, unjustifiable or
malicious complaints by provisions elsewhere in
the Act. The concept of "unjustifiable hardship"
alone provides sufficient protection for any and
all providers.
Temporary exemptions have
not shown themselves to encourage or facilitate
change. There is clear evidence, however, that
they can be and have been used as delaying or
avoidance measures by providers who could have
acted or could now act in a non-discriminatory
way but choose not to.
The examples of the
temporary exemptions granted to the Olympics
Roads and Transport Authority and to Kendall
Airlines illustrate the weakness of current
HREOC policy with regard to temporary
exemptions. Neither of the exemptions resulted
in an acceleration towards non-discriminatory
behaviour or practices. No barrier to accessible
transport was removed by either exemption. They
served only to negate and undermine a key
objective of the DDA: the eradication of
discrimination.
6.
Reasonable adjustment and unjustifiable
hardship
PDCN strongly
believes that there needs to be a much clearer
separation of three concepts within the
DDA:
- disability
discrimination;
- reasonable adjustment;
and
- defence against or
mitigation of a requirement to make a
reasonable adjustment, of which
"unjustifiable hardship" is but one type of
defence.
Currently, it appears that
these distinct concepts have been conflated by
HREOC (and by the Courts) as if they were three
aspects of some indivisible PDCN recommends
whole. We believe this to be an error of policy
and practice that undermines the intention of
Parliament when it enacted the DDA.
We strongly believe that
in every instance or complaint each component
must be assessed separately.
- Has disability
discrimination occurred? Yes or
no.
- Is there a reasonable
adjustment that the respondent can and must
make? Yes what is it or no and here's why
not.
- Why is an adjustment
not reasonable? Here's a defence (it might be
"unjustifiable hardship").
Such separations would
remove the current confusion of interpretation
and eradicate the potential for conflict of
interest that arises within HREOC.
7.
Determining that disability discrimination has
occurred
PDCN is strongly of
the view that some agency, we suggest HREOC,
should be charged with forming a view that
discrimination has occurred (or not), regardless
of any subsequent consideration of what might be
a reasonable adjustment or whether or not
unjustifiable hardship might become a factor in
determining the course of action that results
from identifying discriminatory
behaviour.
8. A new
duty to make reasonable adjustment
PDCN believes that
the DDA lacks clarity with regard to positive
action to avoid discrimination. It is clear that
the DDA requires providers of goods and services
not to discriminate. This requirement cannot be
tested, however, unless and until an act of
potential discrimination occurs and a complaint
is lodged by an aggrieved party. As a
consequence, the DDA has become a reactive tool
rather than a genuinely enabling piece of
legislation.
PDCN believes strongly
that the concept of 'reasonable adjustment'
should be clearly articulated and defined within
the DDA.
We would go further,
however, than merely articulating and defining
what is meant by 'reasonable adjustment'. The
DDA is deficient (when compared to similar
legislation internationally) because reasonable
adjustment is neither defined nor required.
Consequently, we believe that the DDA should be
amended to introduce a duty to make a reasonable
adjustment. This duty should apply to all
providers of goods and services, including
employment and access to premises.
We draw to the attention
of the Productivity Commission the duty placed
on legal entities to make reasonable adjustments
in The Disability Discrimination Act 1995 in the
United Kingdom.
Part II, section 6 of the
UK DDA places a duty on employers to make
reasonable adjustments.
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Duty of employer to
make adjustments.
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6. - (1)
Where-
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(a) any arrangements
made by or on behalf of an employer,
or
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(b) any physical
feature of premises occupied by the
employer,
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place the disabled
person concerned at a substantial
disadvantage in comparison with persons
who are not disabled, it is the duty of
the employer to take such steps as it is
reasonable, in all the circumstances of
the case, for him to have to take in order
to prevent the arrangements or feature
having that effect.
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(2) Subsection
(1)(a) applies only in relation
to-
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(a) arrangements for
determining to whom employment should be
offered;
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(b) any term,
condition or arrangements on which
employment, promotion, a transfer,
training or any other benefit is offered
or afforded.
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Part III, Section 21 of the UK DDA places a duty
to make reasonable adjustments on the providers of
goods and services.
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Duty of providers of
services to make adjustments.
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21. - (1) Where a
provider of services has a practice,
policy or procedure which makes it
impossible or unreasonably difficult for
disabled persons to make use of a service
which he provides, or is prepared to
provide, to other members of the public,
it is his duty to take such steps as it is
reasonable, in all the circumstances of
the case, for him to have to take in order
to change that practice, policy or
procedure so that it no longer has that
effect.
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(2) Where a physical
feature (for example, one arising from the
design or construction of a building or
the approach or access to premises) makes
it impossible or unreasonably difficult
for disabled persons to make use of such a
service, it is the duty of the provider of
that service to take such steps as it is
reasonable, in all the circumstances of
the case, for him to have to take in order
to-
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(a) remove the
feature;
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(b) alter it so that
it no longer has that effect;
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(c) provide a
reasonable means of avoiding the feature;
or
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(d) provide a
reasonable alternative method of making
the service in question available to
disabled persons.
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With regard to both
areas, a test of reasonableness is applied. It
is not unlike the Australian concept of
unjustifiable hardship. However, that test is
more appropriately located with the context of
the duty that turns the legislation from a
passive Act to a pro-active tool . We strongly
urge the Productivity Commission to view
favourably our recommendations that:
a. Reasonable
adjustment should be explicitly articulated
in the DDA.
b. Reasonable
adjustment should be defined in the
DDA.
c. A new duty to make
reasonable adjustment should be introduced to
the DDA.
It is abundantly clear
from the experiences of Americans and Britons
that reasonable adjustments and a duty to make
such adjustments
- are not prohibitively
costly,
- do not inhibit
competition and
- are not a burden upon
or restriction of trade.
Indeed, it is possible to
argue that the duty to make reasonable
adjustment can act as a stimulus to competition
and trade. Two examples help to illustrate the
point.
- Building Regulations
in the UK were changed in 1999 to require all
new private dwellings to be at least
"visitable". The housing market neither
collapsed nor was trade restricted by the new
duty. There is some evidence from the UK and
other European jurisdictions (Sweden, Norway
and Holland have been cited) that greater
accessibility in housing design heightens
market competition, not diminishes
it.
- Requirements for
low-floor, wheelchair accessible bus designs
(in Australia, the UK, the USA and elsewhere)
have stimulated demand for new products (new
styles and configurations of buses) as well
as competition between providers to enter
previously marginalised markets resulting in
increased passenger use and progress towards
more environmentally sustainable transport
options.
In short, we strongly
believe that a duty to make reasonable
adjustment is wholly consistent with the trend
towards 'triple bottom line' evaluation in
business.
9.
Unjustifiable hardship
We wish to make two
comments with regard to unjustifiable
hardship.
Firstly, it seems
reasonable to assert that greater emphasis must
be placed on the unjustifiable hardship
experienced by people with disability living in
the sometimes hostile environment in which their
needs are not met and their rights denied. The
status quo is not cost-free for people with
disability in particular and society in general.
A few examples help to illustrate this
point.
- In education: School
transport remains mostly inaccessible to
wheelchair users. One consequence of that
fact is that State Government Education
Departments inappropriately use tax dollars
to fund alternative transport measures at a
cost to the Education Budget.
- In disability
specialist services: Much of the community
and generic service system is inaccessible to
many people with all types of disability.
Health centres, community centres, employment
providers, transport, etc, etc, are not
accessible to or inclusive of the whole of
society. As a consequence of failures in the
'mainstream' an entire industry of disability
specialist services has been developed,
financed or provided by State Governments and
non-government, not-for-profit agencies. In
NSW, alone, the Department of Ageing
Disability and Home Care has an annual budget
in excess of $1.4 Billion. A substantial
proportion of this amount (perhaps
unquantifiable at this stage) is tax-financed
expenditure. It is required to compensate for
inequality of opportunity and the
discrimination inherent in mainstream and
generic services, which have failed to make
reasonable adjustments.
The costs of dealing with
these types of systemic failures must feature
more strongly in consideration of the
unjustifiable hardship borne by the whole
community for disability
discrimination.
Secondly: it is essential
that the concept of unjustifiable hardship be
located within a proper context. For as long as
there is exists no duty to make reasonable
adjustment, unjustifiable hardship will remain
ill-defined, lacking a counter-balancing concept
(in law) of what might be deemed
reasonable.
PDCN does not oppose, per
se, the idea of unjustifiable hardship. In its
current, un-reconstructed form, however, it
lacks the precision necessary for good judgement
to operate as all stakeholders strive to fulfil
the objective of the DDA to eradicate disability
discrimination.
10.
Eliminating discrimination
We agree with the
Productivity Commission that "measuring levels
of discrimination is very difficult". We would
add, however, that when something looks like an
elephant, walks like an elephant, sounds like an
elephant and smells like an elephant, the
chances are that what you're standing in front
of is an elephant. In short, we know that people
with disability experience disability
discrimination every day and in every aspect of
life.
In Box 3, page 17 of the
Productivity Commission Issues Paper there are
clear, verifiable measurements of substantial
disadvantage described using reasonable and
easily understood indicators of disability
discrimination. We would add similar
observations from a range of sources:
- 80% of people with
disability live on fixed incomes,
predominantly the aged pension or the
disability support pension.
- 33% of all people with
disability are 65 years of age or over and
not, therefore, in the labour
force.
- 53.5% of adults with
disability of working age (15 - 64) are not
in the labour force. This is double the rate
for the population as a whole.
- 21% of people with
disability who are in the labour force are
unemployed. This if almost 4 times the
unemployment rate for the population as a
whole.
- Research in Australia
and overseas strongly indicates that people
with disability have additional,
non-discretionary costs of living that are
directly attributable to their impairment
type and/or to the effects of
disability.
- Work by the Physical
Disability Council of Australia shows strong
evidence that people with disability have
greater costs - on specialist items and
general expenditure - than people with no
disability.
- A survey by the
Australian Quadriplegic Association (AQA)
found that among 200 adults with quadriplegia
between one-quarter and three-fifths of
people's income was spent on
non-discretionary items related to
disability.
- The AQA survey found
that for people whose only income was the
DSP, 59% was spent on disability related
items (with median figure of $5,054 per
year).
- The same survey found
that people in employment spent a median
figure of $8,783 on disability related
expenses, representing 23% of their
income.
In NSW alone;
- Most dwellings are not
accessible. They are not built to
barrier-free standards that would allow
people with physical disability to rent or
buy them.
- Marginally less than
10% of Department of Housing properties are
accessible, although 22% of applicants on the
priority waiting list for housing are
believed to require adaptable or accessible
housing.
- With the exception of
some SEPP 5 developments, most newly built
dwellings are not accessible. It is often
impossible for people with physical
disability (not just wheelchair users) to
visit new dwellings, let alone live in
one.
- An internal survey of
Housing Department waiting lists in 1997
found that people with physical disability
requiring adaptable housing wait more than a
year longer to be re-housed than people with
no physical disability.
- People with physical
disability are disproportionately represented
in the top twenty applicants of waiting lists
throughout the Department of Housing. People
with disability rise to the top of waiting
lists as they are managed in chronological
order. When people with disability reach the
top of the lists, however, the lack of
accessible housing means that applicants with
no disability are allocated available
properties, 'leap-frogging' over people with
disability.
- The "Special
Assistance Subsidy (Disability)" scheme is a
helpful initiative to assist people with
physical disability with unmet housing need.
As welcome as the scheme must be to people
with disability who are assisted by it, PDCN
cannot escape the observation that the very
existence of the scheme is an admission by
the Department of Housing that it's current
housing stock cannot meet demand from people
with physical disability.
- No reliable data
exists about the accessibility and/or
adaptability of the housing stock in
NSW.
- Larger families with a
member who has a physical disability face
particularly acute housing problems when they
need 3 or 4 bedroom properties.
- People with disability
find themselves (like others on low incomes)
moving from popular and/or metropolitan
locations as they search for affordable,
accessible accommodation. The need to
re-locate to less densely populated, lower
cost areas tends to move people further away
from other services that they may depend on,
exacerbating problems of unmet
need.
- New homes being built
are not accessible or easily modified because
few local Councils have development control
plans incorporating the Adaptable Housing
Standard for multiple-unit developments
AS4299 and AS3661 (the Slip-Resistant Surface
Standard for pedestrian areas).
- 95% of taxis in NSW
are not wheelchair accessible.
- 90% of City Rail
stations are not accessible to wheelchair
users and a very large proportion cause
difficulty to others with mobility
problems.
- 63% of Sydney ferry
stations are not wheelchair
accessible.
- 80% of private sector
buses are not wheelchair
accessible.
- Less than 30% of State
Transit Authority buses are wheelchair
accessible.
- All but one Country
Link station is wheelchair accessible, which
we applaud, although we note that many
Country Link destinations are actually served
by buses, which are not low-floor design or
wheelchair accessible.
11.
Competition and economic effects
Received wisdom
would have us believe that regulation has a
deleterious economic effect and works against
competition. There is very little evidence to
support either contention unless one restricts
one's view to what some people term economic
rationalism and short-term approaches to markets
and competition.
We believe that the DDA
has the potential to boost economic activity
through re-shaping social relations. Similarly
the DDA can become a force to stimulate greater
competition as new and existing suppliers strive
to meet the requirements of re-shaped markets
that become less distorted and excluding because
of new market rules that depend upon equality of
opportunity to gain access to those
markets.
We repeat an earlier
observation. The status quo of discrimination
and disadvantage costs everyone, including
people with disability, vast amounts of
inappropriately directed tax dollars. The status
quo is not cost-free or neutral with regard to
competition, markets and economic well
being.
The indirect costs of
discrimination and inequality are
massive:
- Unnecessarily large
amounts of tax dollars are targeted at
disability specific and support services,
which (in many instances) do no more than
inadequately compensate people with
disability for social exclusion.
- So-called special
services (transport, housing, day time
activities, segregated education, etc)
distort our collective appreciation of what
the term mainstream ought to mean in relation
to all services. As a consequence, markets,
services and competition to meet the needs of
those markets through inclusive services have
become distorted.
- People with disability
have become identified as economic burdens to
be borne by a so-called mainstream comprised
of people with no disability. As a
consequence of such ideologies, for example,
people with disability of working age have
been denied entry to the workforce and,
therefore, the opportunity to be economically
active, contributing neither as taxpayers nor
entrepreneurs.
- Economic exclusion of
people with disability distorts markets and
competition by narrowing the focus of product
and service development. Inclusiveness of
design or service delivery, capable of
meeting a broad range of market and
competitive requirements, has been sacrificed
to narrow, short term and unsustainable
gains. The shifting paradigm between
commitment to more accessible public
transport for all and traditional emphases on
private transport is but one
example.
Can costs and benefits be
quantified? Yes. For example:
- People with disability
of working age are four times more likely to
be unemployed than people with no disability.
Most of the people with disability who are
excluded from work will be in receipt of
fixed income support funded directly by
taxation. Acting to eradicate prejudice and
discrimination against people with disability
with regard to employment simultaneously
increases potential tax income (people with
disability are more likely to work and pay
taxes) and reduces potential tax-based
spending (people with disability in work make
less of day services, health services,
etc).
- A fully accessible,
fully integrated public transport system has
identifiable costs (both to create and
sustain). There are measurable economic,
social and environmental benefits, however,
resulting from increased passenger numbers,
reduction in the use of private vehicles,
associated reduction in the use of
non-renewable energy sources and in
greenhouse gas emissions. And these benefits
are not limited to people with disability.
Evidence from Europe clearly indicates that
where transport services are made more
accessible to people with disability usage
increases by people with no
disability.
- The debatable
additional costs of designing new houses that
are barrier-free from inception are
outweighed by increases in property value
across and throughout the life of such
houses. Houses designed to meet the potential
needs of any user contribute to reduced
levels of public expenditure funded by taxes
by permitting people to remain in their own
home for as long as possible with no more
than the required amount of home-based
support. Conversely, poor housing design
requires people to move, if and when
impairment becomes a factor in their lives,
often moving to less cost-effective supported
accommodation, nursing home or hospital
settings. These costs, attributable to
unequal access to the market, will be
substantial in a population that is ageing
and living longer.
We believe these three
examples can be and are reflected in every
aspect of modern living. We reject the
assumption inherent to the third question on
competition (page 20 of the Issues paper) that
the DDA has a negative effect on competition.
There is not a shred of evidence to support such
an assumption.
12.
Omnibus legislation
PDCN sees no
practical benefit in the Commonwealth adopting
omnibus legislation. We feel strongly that
discrimination is not monolithic. It takes many
forms and manifests itself in many ways. Sex,
race, disability, age and other forms of
discrimination may share some antecedents and
characteristics. But there are subtle (and not
so subtle) differences. Complex, long-standing
and deeply entrenched prejudices, social forces
and economic circumstances have combined to
create discrimination in its modern, complex,
multi-faceted manifestations. In our view,
complexity and subtlety require a no less
complex and subtle set of corrective laws,
clearly defined by and defining the challenges
they seek to address. In short we feel strongly
that Federal Law should continue to apply the
principle of horses for course.
Anti-discrimination laws should remain distinct
and separate but share a common commitment to
eradicate discrimination in whichever way it is
made manifest.
13.
Disability Standards
If Disability
Standards are to play a meaningful role in
eradicating discrimination they must become
enforceable minimum requirements that mandate
the behaviour of social actors within and no
less than a set of prescribed, measurable
performance indicators. In short, Standards have
to mean what they say.
Standards have greater
chances of delivering the intention of
Parliament, within the spirit of the law, if a
duty is placed upon providers to make reasonable
adjustment. If all social actors understand and
believe that passivity is not an option then
Standards can become a tool for informing,
guiding and leading processes of change to which
all stakeholders must show commitment through
demonstrable action.
The process for developing
disability standards can be improved in the
following ways:
- The majority of the
group devising standards should be people
with disability.
- More resources need to
be allocated to developing and consulting on
draft standards.
- The time taken to
develop a draft disability standard should
never again be as long as that taken with the
transport standard.
- The commonwealth
Government must act with a more powerful and
transparently committed political
will.
- Service providers must
have placed upon them a duty to make
reasonable adjustment.
Independent, mandatory
monitoring must be incorporated into all future
standards. We propose a changed role for HREOC
elsewhere in this response. If our suggestions
were adopted we would be happy for HREOC to
become the enforcement agent of mandatory
monitoring and attainment of standards
objective. If the roles of HREOC remain
conflicted and unclear we would prefer that
discussion commenced on identifying another
agency to enforce the disability standards of
the DDA.
PDCN believes strongly
that the inclusion of the concept of
"unjustifiable hardship" within the text of a
DDA Standard undermines the intention of
developing Standards. If, as we are led to
believe, DDA Standards constitute minimum
requirements (rather than guidance) the Standard
must be constructed on the basis what is
required is reasonable and
affordable.
It is fair that guidance
should be subject to a test of affordability. A
requirement, however, must surely assume that
that which is required is affordable. To allow a
defence on "unjustifiable hardship" with regard
to a minimum requirement makes no logical sense.
We strongly urge the Productivity Commission to
recommend that "unjustifiable hardship" be
removed from DDA Standards, safe with the
knowledge that the Act already permits
consideration of this defence where no minimum
requirement has been set.
In our view there is more
merit in a guidance regime, not bound by the
misnomer of "DDA Standard", than a supposedly
minimum requirement Standards regime
incorporating what we see as an unreasonable
'get out clause' such as "unjustifiable
hardship".
14. HREOC
guidelines and advice
We welcome HREOC
giving guidance and wish its role strengthened,
subject to satisfactory removal of the potential
for conflict of interest that clearly, currently
exists. If HREOC continues to have a role to
play in mediation in complaints it remains
possible for HREOC to be guiding, advising and
mediating on its own guidance and advice if a
complaint is lodged in an area that HREOC has
issued guidance.
In such circumstances the
role of HREOC becomes impossibly confused.
Mediation requires an interested but uninvolved
third party capable of working with two (or
more) people or organizations contesting facts
and interpretation of facts around a single
event or set of circumstances. No agency,
including HREOC can play all roles: guide,
advisor and mediator. No agency should be asked
to.
15.
Disability Action Plans
All incorporated
bodies and legal entities such as limited
companies, co-operatives, partnerships, trusts,
government agencies (essentially every legal
personality except sole traders) should be
required to submit a disability action plan.
Failure to develop a mandatory disability action
plan (two years after the introduction of this
new duty) would be a factor admissible in
mediation and / or proceedings relating to a
complaint of disability discrimination.
Why have relatively few
business submitted voluntary action plans?
Because they are voluntary. The luxury of not
planning for change to a non-discriminatory
future should be removed from all social actors
of the type described above.
If a decision is taken to
continue to allow temporary exemptions it seems
to PDCN to be wholly unreasonable to grant any
exemption if no disability action plan
exists.
Monitoring progress is a
critical component of all planning. Without an
effective monitoring mechanism or regime it is
impossible to know how well the plan is working
(or not working). The absence of a mandatory
monitoring regime is a serious flaw in the
processes of disability action planning under
the terms of the DDA. PDCN believes that
mandatory monitoring should be introduced for
all Disability Advocacy Plans. HREOC or some
other, autonomous body, should be given the
responsibility and resources to manage and
provide a robust Disability Action Plan
monitoring regime.
16.
Industry self-regulation
Almost by
definition, if an industry was self-regulating
its genuine commitment to non-discriminatory
best practice no legislation would be necessary.
We need legislation because industries have been
and are woefully inadequate at regulating
themselves. There must be no amendment to the
DDA to facilitate self-regulation
17.
Complaints
It is abundantly
clears to everyone that the loss of jurisdiction
that saw complaint resolution removed from HREOC
and returned to the Federal Court has had a
dramatic and dramatically bad effect on the
raising of complaints. The facts of the matter
are stunningly simple. The Federal Court is a
costs jurisdiction. People with disability are
very reluctant to pursue complaints vigorously
to the logical conclusion when the very real
risk of being required to meet the respondent's
costs weighs heavily on their minds
This is not to argue that
people with disability have raised bad or
unwinnable case. We merely observe what everyone
knows. The scales of justice were tipped in
favour of respondents when the end of the
complaints' journey became the Federal
Court.
Most complainants are
people with disability who are not lawyers and
cannot afford legal fees. Most respondents have
much easier access to legal advice and they make
use of that advice. The risks of losing, perhaps
on a legal technicality, have become much, much
greater. Anyone can see that a respondent
committed to taking no action need do little
more than assert, "see you in the Federal
Court", to stall or end a complaint. The risks
to people with disability have simply become too
great.
We believe that profound
changes need to be made to the complaints
mechanisms of the DDA. These might
include:
- HREOC could be given
Federal Court powers but as a cost free
jurisdiction.
- Discrimination law
could be defined as a cost neutral matter
(i.e. each party understands at the outset
that each party is responsible for their own
costs and the Court bears its own costs
unless an action is deemed
mischievous).
- HREOC or its
complaints / legal section could cease to be
a mediator in DDA complaints and become the
legal advocate for complainants, bearing the
costs of advocacy and, therefore, considering
the chances of success before acting on
behalf of a complainant in Court system. We
envisage here a role not unlike the Crown
Prosecution Service. Another agency or
another part of HREOC would then adopt a role
not unlike the police service.
- HREOC could receive
powers not unlike the Ombudsman.
- HREOC would be
empowered to initiate complaints.
We feel strongly that no
one agency, in this instance HREOC, can or
should be educator, adviser, guide and mediator.
There must be a more distinctive role for HREOC.
The key missing element is what one might call a
level playing field with regard to complaints
resolution and determination of decisions. The
Productivity Commission must, in our opinion,
set new directions for these matters consistent
with the aim of the DDA to eradicate disability
discrimination.
18.
Measuring effectiveness
The Productivity
Commission itself should take responsibility for
analysing the effectiveness of both the DDA and
of HREOC. If any agency is well placed to
compare and contrast different Commonwealth Laws
and agencies it must surely be the Productivity
Commission with its role, defined by
Parliament
Comparing the DDA: It is
clear that two types of comparison might be
possible.
- Comparison with
Australian legislation such as the Sex
Discrimination Act and the Racial
Discrimination Act and State
instruments.
- Comparison with
overseas legislation. In particular we
suggest the Americans with Disability Act and
the UK Disability Discrimination
Act.
Comparing HREOC: Comments
we have received from individuals with
experience of making complaints through HREOC
suggest that serious questions must be asked of
the effectiveness of HREOC and, consequently,
whether or not it has the resources and
managerial skills necessary to be the best
complaints resolution service possible. Some
comments we have received include these
observations:
- Complaints handling
takes a very long time.
- HREOC seems to lack
the skill required to gather, analyse and
make use of documents deemed to be essential
to understanding issues that lie at the heart
of a complaint.
- There often appears to
be a lack of consistency or common
understanding between the Complaints unit and
the Policy unity inside HREOC.
- A tension exists
between the duty placed upon HREOC by the DDA
to eradicate discrimination and its role as a
mediator. By definition, mediation requires
that the mediator be neutral and be seen to
be neutral. Eradication of discrimination
requires HREOC to be an advocate for the
rights established by the law. Some of the
inertia that we observe in the complaints
handling role of HREOC may be attributable to
complexities and inherent conflicts of the
role of HREOC as currently
constituted.
Clearly there are obvious
points of comparison in the State agencies
charged with fulfilling similar roles to
HREOC.
— Submission to Review by
DADHC, May 2003
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