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IntroductionThis is the first of our irregular bulletins. These irregular bulletins will be E-mailed free of charge to anybody whose Email address we have or who sends us their name, Email address, phone number, what organisation they work for (if they work for a disability organisation) and whether or not they have a physical disability or care for a child or young person with a disability. Feel free to let others, including members of your organisation know that they can sign up for free by E-mail the above particulars to pdcnsw@pdcnsw.org.au Our mission is to spread advocacy of physical disability issues far and wide. Our bulletins will aim to call a spade a spade! Let us know if you have received duplicates of this E-mail and please let us know if you want to be taken off this list. CONTENTS
1. TEST CASE VICTORY FOR SCARLETT! A WIN?This is a victory only in that a loss in this case was too awful to contemplate! The win, which hopefully will not be soured by an appeal to the High Court, will make it hard for schools to put up cost figures based on worst-case scenarios. It means that schools will have to consult meaningfully with parents who want their child enrolled in the school of their choice. It will hopefully mean that the onus will be on the school to enrol the child rather than to have the child prove their value to the school. It does not mean that schools cannot discriminate if to do so involves unjustifiable hardship. The costs that would have been incurred to enrol Scarlett would have been minimal - so it still leaves the issue of defining unjustifiable hardship up in the air. What would the Court have said if the costs would have been significant, or if the school had not been wealthy enough to boast a student-staff ratio of 15 to 1? The Finneys were lucky enough to have started under the old DDA regime. How many people will go as far as the Finneys when faced with the possibility of having costs awarded against them. The decision by the Federal Court can
be viewed on Media Release From the Public Interest Advocacy Centre Media Release:The Federal Court today handed down a decision in favour of Scarlett Finney in an appeal by the Hills Grammar School against a decision of the Human Rights & Equal Opportunity Commission (HREOC). In 1999 HREOC found that the Hills Grammar School had unfairly discriminated against Scarlett Finney on the basis of her disability, spina bifida, by refusing her application for enrolment. Today, the Federal Court upheld HREOC's decision, finding that Commissioner Graham Innes' decision was both reasonable and methodical. Alexis Goodstone, solicitor of the Public Interest Advocacy Centre (PIAC) said: "The decision is a resounding victory for the Finneys, who have been struggling for over two years to first obtain and then defend the finding of unlawful discrimination. It is also a vindication for all students with disabilities. It endorses their right to attend mainstream schools, including private schools." The decision confirms the principles upon which future cases of this kind will be decided. In addition it confirms: • that the changes needed to accommodate Scarlett would have. been minimal and would not have placed an "unjustifiable hardship" on the School; Ms Goodstone also said: "The decision will have far-reaching implications for all people with disabilities and puts schools on notice as to their legal obligations under the. Commonwealth Disability Discrimination Act." Media Release From the Physical Disability Council of NSW:John Moxon, President of the Physical Disability Council of NSW, warmly welcomed today's decision of the Federal Court in Sydney to reject the appeal of Hills Grammar School in the Scarlett Finney case. Speaking earlier today, Mr. Moxon said: "This is news of an excellent decision. The Court has given what we hope will be a definitive judgment, clearly establishing the right of Scarlett Finney to be educated free from the damaging effects of discrimination. It is a landmark judgment, setting out the legal framework of what people of good faith knew already to be fair and just. TRANSPORT EXEMPTIONS UNDER THE DDAOlympic Road Traffic Authority (ORTA) HREOC has recently posted information that outlines the proposal to exempt the Olympic Road Traffic Authority (ORTA) from discrimination during the 9-week period of the Olympics and Paralympics in Sydney later this year. To view full information, see the following HREOC site on the internet
The application is submitted on behalf of ORTA;
The purpose of the application is to protect bus operators, ORTA and other parties concerned from liability which might otherwise arise from the temporary transfer of accessible buses from other services to Olympic and Paralympic related services. The exemption is also to enable accessible buses to replace rail services in some New South Wales locations during this period. The ORTA application defies belief. If it was not so serious we would have assumed that someone was making a joke. The Olympic Games are not what one might call a secret. Unless PDCN is very much mistaken, the entire world and most of the known Universe has understood for FOUR YEARS that the five ring circus was coming to town. The idea that 12 weeks before the event ORTA can suddenly appear surprised that there are not enough wheelchair accessible buses to go round is so incredible ... so monumentally impossible to believe that we can only assume that everyone involved in submitting the application has been in another galaxy for the whole of their lives. What do these people think we have been saying for 10 or 20 years, never mind the last 4. The ideas that ORTA's failure to plan properly for an entirely predictable eventuality cannot, we repeat cannot, be solved by commandeering all the wheelchair accessible vehicles from around the country. Has nobody considered how the current users of such transport get to and from work, take children to school, go to college, the cinema, shopping or any of the hundreds of other activities that we all participate in every day. Below is a document developed by the Sue Egan at the Physical Disability Council of Australia in response to the Exemption proposal. The WE WILL RIDE campaign strongly objects to this proposed exemption and is calling on us people to forward this protest document in their own names, to let HREOC know that we do not want this to happen, and that we do not want to lose what little transport options we have because of the short sightedness and lack of proper planning by the Olympic Committees. Nor do we want to protect those who will not provide for our needs, so that the Olympic Road Traffic Authority doesn't get egg on its face during the forthcoming events! Accessible Transport should have been thought about and planned for, many years ago, rather than expecting the disability community go without transport in other areas of Australia during this time. Register your displeasure by sending the document below by email, under your own name to disabdis@hreoc.gov.au. Exemption Application by ORTA Individual Comment Kendell AirlinesIf the ORTA story is not enough, HREOC
has also received an application for exemption from parts of
the DDA from Kendell Airlines, available from the HREOC
site, Kendell Airlines seeks an exemption for no less than 5 years on low capacity aircraft. The airline wishes to be given approval to refuse specified types or groups of people with disabilities in aircraft carrying fewer than 35 passengers if two of five criteria exist viz. no flight Attendant; non-retractable seat armrests; unable to be accessed by a passenger compliant lifting device; nil access to seat via modified wheelchairs due to small isle width; available space in side the aircraft prohibits the safe manual handling / manipulation of disabled passenger. People with disabilities have been flying as passengers in small planes for as long as there have been small planes. How can it be that suddenly an airline thinks we're too difficult, too bulky, too awkward or too dangerous to fly? If the exemption is allowed, our ability to use aircraft to rural areas will be diminished. The effects on people with disabilities living in or travelling to and from smaller communities will be profound. We need to stop this injustice in its discriminatory tracks. With trains not going out to the west, with regional airlines pulling the plug, with coaches inaccessible, how are we supposed to travel? We can understand that they need time to upgrade their facilities, but they should have done that years ago. Why should other airlines not follow if they are granted the exemption? Write a Submission Now - Deadlines Soon!We must all lodge our submissions now - as many of us as possible have to get writing to HREOC today. Submissions on the ORTA application which, alarmingly, the Commissioner has indicated he is likely to grant, must be with HREOC by 13 June 200. The deadline for submissions on the Kendell Airlines' application is 15 June 2000. The address for email submissions is disabdis@hreoc.gov.au and the mail address is available from the above sites. Get to your keyboards or pens and paper now. The submissions need not be long or detailed - there is no formal required format. A short three-line note/submission which makes its point is acceptable. Note that HREOC intends to make submissions publicly available by posting submissions made electronically on its Internet site. Requests for material to be treated as confidential should be clearly indicated. It is vitally important that people with disabilities challenge the applications for exemption that have been submitted by Kendell Airlines and ORTA. BUDGET 2000An good analysis from a disability
point of view of last week's Budget is available from ACROD
at The main point to note about last week's Commonwealth budget is that there is little of any direct benefit to people with disabilities. Commentators in the welfare sector seem to be arguing that the Government does not want to pre-empt the National Welfare Reform recommendations. PDCN finds this hard to swallow. Given that economists are already saying that the Budget surplus is too small for an economy that has had a number of years of rapid growth, and given that the Australian dollar is under pressure, PDCN finds it hard to believe that there is any chance of increases in expenditure coming out of any future Budget as a result of the Welfare Reform process. (More on the Welfare Reform below). ACROD has given a positive spin on the Government's silence - arguing that it may be a risky strategy of mainstreaming disability services such as disability employment services, needs of children etc. As ACROD points out, the good side is that this is consistent with the trend to advance the community integration of people with disabilities but the risk is that the special needs of people with disabilities will be overlooked and the particular skills of disability service agencies will be overlooked. PDCN finds this hard to swallow. If this sudden interest in mainstreaming were accompanied by initiatives in mainstreaming infrastructure, or advancing the Disability Discrimination Act instead of making it useless, or if Minister Newman's Welfare Reform reference did not make such a big deal about there being too rapid a growth in the number of people on the Disability Support Pension, then there might be reason to see some sort of consistency. PDCN doesn't understand why the disability sector gives the benefit of the doubt to a Government that has shown no interest in assisting groups that are disadvantaged in our market economy, and which does not understand that nature is not a level playing field. PDCN will give the Government the benefit of the doubt by hoping that its disinterest is because it thinks that there is nothing that government can do to make the field more level. But PDCN finds this hope hard to
swallow when it sees the Government doing things to make the
field less level by giving $400 million to private schools
and $200 million to state schools; when it sees the
Government protecting Kerry Packer in its media policy; and
when it sees who the main beneficiaries are of the GST; when
it sees ACOSS's analysis of the $7 billion in wasteful
Government expenditure and tax breaks - WELFARE REFORMThe Physical Disability Council's response to the Interim Report of the Welfare Reform Reference Committee is available from the link in www.pdcnsw.org.au/reports/00/welref.html In its response to the Interim Report, PDCN expressed that it found very little of value to people with physical or other disabilities in the Interim Report. There was no mention of infrastructure requirements (buildings and transport) despite our strong statement that the lack of access was a principle impediment to getting a job. The cost of disability issue and the individual disability allowance was put in the "too hard" basket. There was no recognition of the lack of incentive to work due to the high cost of getting to work for people with physical disabilities and the loss of benefits when income is earned. To top it all off, the Interim Report claimed that in the brave new world after Welfare Reform, people who acquire a physical disability will be offered the choice of rehabilitation or retraining - despite the fact that this Government has cut or reduced rehabilitation and retraining programs for people with disabilities. PDCN (politely) expressed its profound disappointment in the Pollyanna approach adopted by the Interim Report. On May 3, John Moxon and Jack Frisch represented PDCN at a meeting in Canberra of the National Coalition on Disability and Income Support (Welfare) at which several disability groups consulted with a two members of the Reference Group on Welfare Reform. The consultation at times got heated when the various disability sector representatives expressed their disappointment in the Interim Report. The Reference Group members claimed that they were still thinking about some issues (including the disability allowance) and still working on the costing model. This is despite the fact that they are consulting through May and will have to hand down the report by the end of June and that they have had give months to "think". The Reference Group members also asked sector representatives to put up models and more ideas - despite the fact that everyone at the meeting had put up detailed submissions - which were then ignored by the Reference Committee - last December. Certainly the Reference Group members seemed to be oblivious of the issues which PDCN had put up in December. On May 5, Dougie Herd and Jack Frisch represented PDCN at another consultation with four Reference Group members at ACOSS. A number of welfare groups were present at the meeting. Basically, everyone went over the same ground as had been gone over a couple of days earlier - but this time in a welfare forum rather than a disability forum. Where will it all go for people with disabilities? PDCN expects that the Final Report of the Welfare Reform Reference Group will take on some of the issues that have been raised, but the Government will choose to ignore those recommendations which cost money in the short-run while accepting those recommendations which save money in the short-run. Although the Final Report will talk about how the recommendations are a package from which it is inappropriate to pick and choose, and it will talk about the importance of investing (i.e. short-run spending for long-run savings), the Government will ignore them and it will pick and choose as it sees fit. PDCN expects that this whole process will come to very little. It will be ignored first because of the GST and Olympics, then it will be overtaken by the forthcoming recession, and then the Government will go into election mode. The Government will not dare touch Welfare Reform before an election, and then the Government will be tossed into Opposition. At that stage we can only hope that the ALP will toss any Report whose recommendations put people with disabilities into the "too hard" basket will itself be put into the rubbish bin of history where it deserves to be. Physical Disability Council of New
South Wales Tel: + 61 (0) 2 9552 1606 PDC NSW Inc. is funded by the NSW Government's Ageing and Disability Department. Views expressed by PDC NSW Inc. are not necessarily endorsed by the NSW Government.
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