|
The Secretary
Senate Legal and Constitutional Legislation
Committee
Parliament House
CANBERRA ACT 2600
15 July 1998
Fax: (02) 6277 3830
(02) 6277 5794
E-mail: legcon.sen@aph.gov.au
1. Introduction
1.1 The
Physical Disability Council of NSW (PDCN) is the
peak body representing people with physical
disabilities in NSW. PDCN was formed in 1994 and
membership is open to individuals with physical
disabilities, organisations representing people
with physical disabilities and other interested
individuals. The committee of management is
comprised of a majority of people with physical
disabilities.
PDCN takes this
opportunity to make its submission to the Senate
Committee in relation to the Human Rights
Legislation Amendment Bill (No 2) 1998
(‘HRLAB2’). We were not sufficiently
resourced to be able to comment on the Human
Rights Legislation Amendment Bill 1996
(‘HRLAB1’) when that Bill was before
the Senate Committee in 1997, and would like to
take this opportunity to comment on our concern
about “costs” in that Bill.
1.2 PDCN is
concerned about the content of a number of
aspect of both Bills, but has particular
concerns in HRLAB2 in relation to
the:
- change in the
structure of the Commission to remove
specialist Commissioners
- change to the right of
the Commission to intervene in court hearings
with a human right component
- removal of
compensation and damages and the change of
focus of the Commission.
1.3 PDCN’s
main concern however is with the HRLAB1
amendment relating to the issue of “costs
following the event” in disability
discrimination cases, particularly in view of
the amendment in HRLAB2 which removes the
compensation and damages which were suggested as
one of the justifications for making costs
follow the event.
2. Removal of Specialist
Disability Commissioner
2.1 The
amalgamation of the functions of the Disability
Commissioner into the functions of the Deputy
President responsible for human rights and
disability discrimination is an improvement of
the initial plan to have only generalist Deputy
Presidents, but falls far short of making people
with disabilities feel any confidence about the
future direction of the Commission.
2.2 Experience with
numerous government programs is that when the
needs and rights of people with disabilities are
amalgamated with the needs and rights of another
group (the aged, the ill, ‘minorities’
etc.), the needs of people with disabilities are
relegated to a secondary position. This is all
the more likely when the specific rights of
people with disabilities is amalgamated with the
broad category of human rights.
PDCN fears that the rights
of people with disabilities could be made
secondary to a wide range of other human rights
grievances e.g. related to age, health,
religion, industrial relations, voting etc.
There is no guarantee that other cases will not
be seen as more important than disability
discrimination. This will be exacerbated if
persons discriminated against on the basis of
sex and race make their complaint with a human
rights slant rather than a social justice or
equal opportunity slant because lawyers and
advocacy organisations see advantage in doing
so.
2.3 Although we
accept that it might be possible for a person
without expertise and/or experience with
disability to come to grips with the wide range
of diverse forms of disabilities and forms of
discrimination, an awareness and understanding
is dependent on the time and resources available
for developing such awareness and understanding.
This is always a challenge but will be all the
more difficult given funding recent cuts to the
Human Rights and Equal Opportunities Commission
and the additional responsibilities on a Deputy
President under HRLAB2.
2.4 The loss of the
Disability Commissioner will also undermine the
leadership that past Disability Commissioners
have shown in relation to disability
discrimination. They have shown that people with
disabilities can and should be central to the
discussions and policy development needed to
ensure equal opportunity, social justice and
human rights. Furthermore, given that human
rights are more general than disability, it is
possible that the responsible Deputy President
will never again be a person who has personal
experience of the disadvantages imposed on
people with a disability by ignorance,
intolerance and prejudice.
3. Commission Intervention
in Court Hearings
3.1 PDCN is
concerned about the need for the Commission to
seek the approval of the Attorney-General when
intervening in proceedings involving human
rights issues including disability
discrimination issues. Our concern is that this
power can give rise to a conflict of interest,
particularly where the Federal government is a
party to proceedings. Cases where the Federal
Government has been involved in human rights
cases have occurred in immigration, family law,
and industrial relations matters.
3.2 The Federal
Government has been a respondent in disability
discrimination cases either directly or
indirectly in Telstra vs. Scott, Disability
Action SA vs. The Minister for Employment, NCID
vs the Office of Disability and it is not at all
inconceivable that it may be a respondent in
future cases since it is a major employer,
service provider, and funder of non-government
oganisations.
3.3 This additional
hurdle for the Commission to clear before it is
able to seek leave of the court for an
intervention is:
- inefficient because it
will involve duplication of resource effort
when the Commission seeks to intervene in a
case and
- inconsistent with
HRLAB1’s intention to facilitate the
Commission’s role in acting as amicus
curiae in anti-discrimination
matters.
4. Other Issues
4.1 PDCN is
concerned about the removal of the
Commission’s power to recommend the payment
of compensation for breaches of unlawful
discrimination and human rights abuses. Although
our experience is that people making disability
discrimination complaints do not seek damages
and compensation but merely seek redress of
wrongful discrimination, we believe that the
power of the Commission to recommend
compensation is an important residual
power.
4.2 PDCN is also
concerned about the possibility that a person
proving a breach of their human rights will lose
the right to compensation under the proposed
Human Rights and Responsibilities
Act.
This amendment:
- sends a signal that
disability discrimination is not a serious
matter and
- takes away the right
of an individual to seek compensation even
when the complainant has suffered serious
financial loss due to
discrimination.
4.3 PDCN supports
efforts to reduce the level of ignorance of
anti-discrimination laws, but is concerned about
the Commission’s increased education role
if the increased function is at the expense of
resources being allocated to the important
function of complaints handling and policy
development.
4.3 It has been
claimed in some circles that a lower priority to
the complaints function is justified by the
lower than expected number of complaints that
have been lodged by people with
disabilities.
PDCN believes that because
“complaining” is very much anathema to
Australian culture, and because people (with
disabilities) are unaccustomed to
“complaining”, expectations of early
success with a complaints process were
exaggerated. For people with disabilities to
make complaints involves an education and
empowerment process which PDCN believes is only
now beginning to take root. It would be a strike
to the heart of the complaints process to
allocate fewer resources to the complaints
function.
5. Costs Following the
Event
5.1 PDCN
would like to take this opportunity to
re-iterate what others have pointed out in
earlier submission to this Committee – that
the “costs following the event” rule
would be equivalent to repealing the Disability
Discrimination Act.
5.2 We are led to
believe that the argument in support of the
“costs to follow the event” amendment
is that more lawyers will be attracted to
disability discrimination cases because they
will be better rewarded than under a regime in
which each party pays its own costs, and that as
a result, there will be more anti-discrimination
cases and more precedents affirming the rights
of people with disabilities.
5.3 The PDCN
believes on the basis of the experience of its
members that that the demand for legal services
from people will disabilities will be all but
eliminated. People with disabilities will stop
making complaints because:
- while they can control
their own costs, they cannot control the
costs of well resourced opponents
- even if they, together
with their legal representative, are certain
of the justice of their case
- they are unlikely to
risk the financial cost of a loss unless they
are certain that these costs can be contained
rather than unlimited
- they will not proceed
with a complaint because they will fear that
the defence of “unjustifiable
hardship” will succeed
- they are likely to
expect respondents to take cases to the
Federal Court merely as a strategy to defeat
the opponent because they will estimate that
most complainants will be under-resourced to
risk proceeding to the Federal
Court
- they are unlikely to
have sufficient faith in the legal system as
a deliverer of affordable
justice.
5.4 PDCN also
believes that to the extent that the
“increased supply argument” relies on
earnings from awards, the argument appears to
miss the point that many people making
complaints are in general not so much interested
in seeking monetary awards but are instead
seeking to assert their citizenship rights to an
accessible environment.
In any case, where the
complainant is seeking damages, the value of the
damages is likely to be small, particularly if
the Commission loses the power to recommend the
payment of compensation for unlawful
discrimination. It is likely to be zero if a
person who alleges and proves a breach of their
human rights loses the right to compensation
– as is intended under the amended Human
Rights and Responsibilities Act. In either case,
the damages are unlikely to lead to the type of
rewards which will attract many contingency
lawyers to disability discrimination
cases.
Yours sincerely,
John Moxon
President
— PDCN Submission to Submission to The
Senate Legal and Constitutional Legislation
Committee Inquiry, 1998
|
