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Disability Disability Rights


Dr Sev Ozdowski OAM,
Acting Disability Discrimination Commissioner

Novotel Brighton Beach , Sydney
24 November 2004

Sev Ozdowski

Acknowledgments and introduction

Thank you for inviting me to speak today.

Allow me to begin by acknowledging the traditional owners of the land on which we meet - the Eora people.

I make this acknowledgment in all my public presentations around Australia, not only because I believe that it is good manners to do so, but also because recognising the indigenous history of this land is an important element in recognising the truth of our diversity as a people.

Disability and diversity

I also make the point whenever I can that disability is an important element of our diversity.

There still often seems to be a lack of sufficient recognition of this fact.

In discussions with people engaged in diversity and equal opportunity policy and practice, there is often a focus on cultural diversity - and people with funny accents like mine; or on issues affecting women and workers with family responsibilities; but much more rarely on disability.

Employment opportunity the original purpose for the DDA

The Disability Discrimination Act was initially conceived as part of a strategy to improve employment opportunities for people with disabilities (and to reduce rates of dependence on social security).

The first proposal for federal legislation on disability discrimination was in fact put forward only as employment discrimination legislation.

National legislation on disability discrimination in employment was one of the major recommendations of the Labour and Disability Workforce Consultancy report, also known as the "Ronalds Report", among a number of other reports leading to the legislation.

The DDA was put forward not as an end in itself but as part of a package to achieve greater participation and opportunity for people with disabilities and to ensure that Australian society benefited from people with disabilities being better able to contribute their skills and abilities to their full potential.

Limited progress on employment

In over a decade of the operation of the DDA we have seen significant gains in some areas, including access to public transport, communication and information, and education.

But although several thousand complaints of employment discrimination have been dealt with, there is no real evidence of overall progress towards equal opportunity or participation in employment overall.

Unemployment rates for people with disabilities are twice those for the rest of the community, while workforce participation rates are 30% less.

The ABS figures for 2000 indicate that when the general unemployment rate was 6%, the unemployment rate for people with disabilities was 13%.

The general labour force participation rate for people of working age was 80% but the corresponding rate for people with disabilities was only 53%.

Under-investment in employment potential of people with disabilities

Mr Mark Bagshaw, that tireless proponent of the economic rationalist case for an inclusive society, has estimated, based on Deakin University research, that on these figures government was spending over $11 billion on paying people not to work - while the Australian community was losing $41 billion of lost potential productivity.

At the same time, he was only able to identify half a billion dollars spent on targeted measures to increase employment of people with disabilities - including frankly quite tiny amounts on the workplace modifications, wage subsidy and supported wage schemes.

More recently ACROD itself has advised me that for every dollar spent on disability support payments there is five cents being spent on disability employment assistance.

Media coverage

Allow me to quote for a moment from a recent article in the Canberra Times, which some of you may not have seen. Serious media coverage of disability issues is easy to miss since it occurs so disappointingly seldom. The article reads:

There are few examples of social exclusion so glaring as that experienced by people with a disability and their exclusion from the mainstream is reflected in many parts of the Australian community. It is time for a renewed effort to combat that segregation.

The Productivity Commission has found that people with a disability were less likely to finish school, to have a TAFE or university qualification and to be employed. They are more likely to have a below average income, be on a pension, live in public housing and in prison. The average personal income for people with a disability is 44 per cent of the income of other Australians.

There are laws in place to discourage discrimination and room to improve those laws. But laws on their own will not be enough to reach the goal. We need to transform structures and attitudes to achieve a real integration and acceptance of people with a disability in our community.

The issue the re-elected Howard Government should address is how to improve the inclusion and participation of people with a disability, to help them fulfil their potential. The focus should be on helping people live better lives, not on budget-cutting exercises like reducing the Disability Support Pension. .

Part of the change needed is to adapt workplaces to better accommodate the employment of people with a disability. Work is important for self esteem and well being. A community's success is often measured in terms of employment levels and productivity. So improving the employment rates of people with a disability - where unemployment rates are 70 per cent higher than the general population - is very important.

Those remarks were from one of our longest serving parliamentarians, Senator Brian Harradine.

I do not think that he is a person whose opinions could easily dismissed by any politician, media commentator or other participant in our political processes as one of the trendy left wing "usual suspects" agreeing with the party line emanating from the Human Rights Commission.

Welfare reform and participation costs

Senator Harradine's article referred to possible changes to disability support pensions.

A number of commentators on the recent election result have noted that, with the changed composition of the Senate, welfare reform in relation to disability pensions may now progress.

Clearly there are real issues for government to address in this area.

I agree with Mark Bagshaw and others that we need to put more effort into rewarding people appropriately for working and making it possible for them to do so, instead of being satisfied with paying them not to.

But, like Senator Harradine, I am concerned that there is a risk of the issue being approached only in terms of pushing people back to work by reducing or taking away benefits for those assessed as capable of working.

I would hope that we might see a more sophisticated approach which addresses barriers to equal opportunity, whether those are barriers that are experienced directly by people with disabilities or by employers.

Previous reviews by government, and arguments by experts in the disability community, indicate a range of issues which need to be considered in conjunction with welfare reform:

  • how effective and adequate is the assistance provided to employers and to people with disabilities in job search and placement, through the Job Network and through other agencies
  • what disincentives to people with disabilities seeking employment may still need addressing, including any areas where a person entering employment loses assistance or benefits while they are still needed or before being sure that employment will continue
  • participation costs facing people with disabilities, including in relation to personal care or support; transport; or disability related equipment, and what means there are for meeting these costs
  • effectiveness and adequacy of assistance to employers in meeting costs of workplace adjustments
  • other assistance with workplace inclusion - including availability of information on inclusive workplace practices and facilities .

Possible public inquiry

You may be aware that I have been seeking views on the possibility of the Human Rights and Equal Opportunity Commission conducting an inquiry on issues affecting employment opportunity and outcomes for people with disabilities.

Comments received so far have strongly supported conducting such an inquiry.

But I know that some stakeholders, particularly employers, but also perhaps some people in the disability services sector, may have some reservations.

So I am very anxious to avoid an inquiry being seen as a negative exercise, a witch-hunt or a venue for re-hearing of individual complaints.

It would be more appropriate for an inquiry to examine systemic and structural issues rather than seeking to inquire into individual instances or allegations of discrimination - since these can be pursued through confidential complaint processes under the Disability Discrimination Act and largely equivalent State and Territory laws.

I would see an inquiry as an opportunity to identify instances or areas of successful or promising practice, as well as areas of barriers and difficulties.

It would also be an opportunity to examine and draw attention to any respects in which employers are not getting what they need from governments, in seeking to take better advantage of the skills and abilities of the whole of Australia's workforce including people with disabilities - whether that is in terms of

  • clearer definition of equal opportunity obligations;
  • better co-ordination between discrimination law and other laws such as occupational health and safety laws;
  • better access to information and advice on practical issues about disability and employment issues - for employers, for people with disabilities and for organisations assisting people with disabilities;
  • more support in meeting costs of adjustments to accommodate workers with disabilities, and better information on support available;
  • issues about co-ordination of government programs, or between education and training and employment
  • or other issues that employers and people involved in disability employment may have .

Some of these issues were discussed in the review by the Department of Family and Community Services last year of the Workplace Modifications Scheme.

The process for that review included fairly extensive consultation and its report made what I think are important recommendations on a wide range of issues affecting employment of people with disabilities.

I would not want an inquiry to duplicate existing work or re-hash previous reviews but I believe there is a role for an inquiry in giving more publicity and priority to issues where there have been previous reviews but not always enough implementation.

I do not think that it is an option for us to carry on with business as usual in this area when the statistical picture on equal opportunity and participation appears to be so poor.

Indeed, in the Commonwealth Government's own employment the representation of people with disabilities seems actually to have gone backwards in the 12 years since the Disability Discrimination Act was passed and since the Senate Community Affairs Committee inquiry on employment of people with disabilities.

The statistics represent a waste of Australia 's most productive resources - its people.

They reflect thousands upon thousands of lives affected by unfulfilled potential and aspirations, as well as financial poverty for people with disabilities and their families.

And they raise serious concerns about the effectiveness of this country's commitment to it obligations on human rights including equal opportunity in employment.

I have already raised the possibility of an inquiry informally with a range of bodies.

One important potential part of an inquiry process would be for representative bodies - whether from industry or the disability community - to auspice discussions on issues of interest to their constituencies. These could be public or private, electronic or face to face, or a mix of each as each organisation concerned thought best.

We will also be consulting with the Commonwealth Government on how to ensure that an inquiry is as productive as possible, including on whether an inquiry should be conducted on the Commission's own initiative or possibly on the basis of a reference from the Attorney-General.

This consultation means that I cannot yet inform you of a definite start date or terms of reference for an inquiry. But I can say that in the next few months we will be moving forward with work on employment issues which is important for us to do anyway and which I expect will contribute towards a more effective inquiry when it commences.

Information and advice on disability and employment issues

I mentioned a moment ago that one of the areas an inquiry could look at would be needs and options for better access to information and advice on practical issues about disability and employment issues.

At HREOC we have thought and said for a long time that a critical gap in the machinery for achieving the objects of the DDA is the lack in Australia of any coordinated mechanism for ensuring that employers, service providers and people with disabilities others with responsibilities under the legislation have ready access to information on solutions to access and inclusion issues and on available resources.

In the USA such a mechanism - the Job Accommodation Network - accompanied the Americans with Disabilities Act. It provides web-based information, and telephone and email advice, on practical and legal issues on employment and disability.

Next month we will be convening a small roundtable discussion on possibilities for establishing a similar mechanism in Australia .

This roundtable is intended to involve participants from government, employer representative bodies, disability employment and service agencies, and other interested and expert organisations, including ACROD.

I hope that this process will lead to development of a proposal that the disability community, employers and governments will all support and pick up and run with.

The best way to run a public inquiry, of course, is to get some of the outcomes you are seeking before you issue your final report, by working co-operatively with everyone involved.

That is the way we have tried to work in the Human Rights and Equal Opportunity Commission's work in the disability rights area for many years, with some major areas of success as I have said.

Productivity Commission inquiry

The proposed enquiry would follow on from the recent Productivity Commission review of the DDA.

That review was broader - in that it dealt with all issues covered by the DDA - but also narrower - in that focussed on the legislation rather than on all the other factors which may affect employment in practice.

Speaking as a member of the Commission which administers the Disability Discrimination Act, I am in agreement with Senator Harradine in thinking it is all too easy to over-estimate the importance of legislation in achieving equality or any other social goal. That is why we are looking at an inquiry that goes beyond the law reform agenda which occupied most of the attention of the Productivity Commission inquiry.

At the same time, the Productivity Commission did make important findings and recommendations.

The Productivity Commission was asked by the Federal Government to review the effectiveness of the DDA and its costs and benefits.

The review found that

  • the DDA had an important and continuing role in providing a fair go for Australians with disabilities;
  • in-built safeguards in the legislation helped to ensure that benefits to the community exceeded costs;
  • overall the DDA has been reasonably effective in reducing discrimination, but
  • there is further to go before its objectives are achieved, in particular in the employment area.

I think this report confirms that a society which better includes Australians with disabilities will benefit all of us by being more productive as well as fairer.

Reasonable adjustment

I regard as particularly important the recommendations to make clearer the duty under the DDA to make reasonable adjustments to accommodate people with disabilities in employment and other areas, and also for governments to share in the costs of making adjustments.

I am not arguing, and I do not believe the Productivity Commission was arguing, for burdensome new obligations on employers either in procedures or in substance.

What I regard the inquiry as recommending is rather a clarification of requirements for reasonable adjustment which are already there in the DDA but not clearly stated or well defined.


I hope to see a response from government to this and other recommendations from the Productivity Commission review as soon as possible now that the election is settled.

But as I have said, reform of the details of discrimination law is clearly not the whole story in working towards a society which provides for more equal participation by all its members, and an economy which makes more productive use of available human resources, by more effectively including people with disabilities.

The last overall public examination of issues of equal opportunity and participation for Australians with disabilities was back in 1992 with the inquiry by the Senate Community Affairs Committee.

Since then there have been important reviews of particular pieces of the picture - particular programs and policies, as well as the Productivity Commission review of the DDA.

But I think it is time for an examination which tries to bring the pieces together in the employment area.

The public inquiry I am proposing is intended as I have said not as a hunt for the guilty but as a search for new and better ways of working together towards these goals.

I would be very happy to take up any suggestions for co-operation through this process or in other means of advancing productive use of diversity and equal employment opportunity for Australians with disabilities.

Thank you