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DDA Standards and Regulation Impact Statements: Context and Process

Disability Rights

DDA Standards and Regulation
Impact Statements: Context and Process

Graeme Innes

Deputy Disability Discrimination Commissioner

Human Rights And Equal Opportunity Commission

Presentation to Disability
Studies and Research Institute Seminar

19 July 2002

Graeme Innes

Firstly, I acknowledge the traditional owners of the land on which we

Much of my mis-spent youth involved listening to rock bands. At that
time the internet hardly existed, as opposed to the ubiquitous role it
now plays in our lives. That's a shame for many reasons, one of them being
that had it done so, I could have justified my time by contributing to . This is
a site which lists what people thought were the words of rock songs, and
then what they actually are.

So in Jimmy Hendrix' Purple Haze he's saying "scuse me while I kiss
the sky", rather than "scuse me while I kiss this guy".

In Robert Palmer's Might As Well Face It You're Addicted to Love he's
not saying "might as well face it your addict with a glove".

And in Advance Australia Fair (a slight diversion from rock bands) it's
not "Australians all love ostriches for we are young and free".

You may be wondering what this has to do with the potentially dry old
subject of Regulation Impact Statements. Well, apart from allowing me
to share my love of 70s and 80s music (my wife tells me I live in a music
time-warp) it demonstrates one of my messages today, which is that things
are not always exactly what they seem.

I have been asked to give a contextual opening address. This could allow
me to wander through a detailed history of the enactment of the DDA with
particular reference to DDA Standards. I intend to do this, but fairly
briefly as I think this audience already has most of that knowledge. I
then want to look at Regulation Impact Statements and their purpose, and
consider how this should define our approach to their development.

The first and key Object of the DDA is to eliminate, as far as possible,
discrimination against persons on the ground of disability in a range
of areas of public life.

In his second reading speech when introducing the Bill in 1992 the then
Deputy Prime Minister Brian Howe said -

"People with disabilities are entitled to the same rights and the
same opportunities as other Australian citizens. However our society currently
falls well short of realising this ideal. People are still subjected to
discrimination on the basis of disability- discrimination which, I am
sure all honourable members would agree, is socially damaging, morally
unacceptable, and a cost to the whole community."

He continued

"I do not believe there is any better example of social justice
than this legislation - legislation which provides the framework to eliminate
the discrimination which prevents fair access for people with disabilities
to jobs, education, sport and entertainment, and which provides an effective
means of overcoming perhaps the most significant barrier that people with
disabilities face in this country - the attitudinal barrier."

After detailing the breadth of the definition of disability, and the
areas that the Bill would cover, Mr Howe explained the complaint-based
nature of the proposed legislation, and that it would be administered
by HREOC. He then commented that - like the equivalent US and Canadian
legislation - the Bill also contained provisions for the making of Disability
Standards in the future. He noted that such Standards would not be made
without extensive consultation with all affected parties, including State
and Territory Governments.

The Bill became law in March 1993.

Section 31 of the Act allows the Attorney-General to formulate Disability
Standards relating to people with a disability in the areas of employment,
education, accommodation, public transport, the administration of Commonwealth
laws and programs, and access to premises. The section provides that the
Standards are disallowable instruments, which means that within 15 sitting
days of their formulation and tabling in both houses of Parliament by
the Attorney they will take effect provided there is no notice of motion
to the contrary. Section 32 of the DDA makes it unlawful to contravene
a Disability Standard, which means that the same complaint provisions
apply if such contravention occurs. Amanda Davies from the Attorney-General's
Department will probably explain that far more clearly than I have, although
she's a lawyer as well so there's no guarantee on the level of clarity.

The major advantage of Standards, for both the disability sector and
the potential respondents for whom they are relevant, is that they provide
clarity and certainty. Everyone knows what constitutes discrimination
in the particular area, and complaints are therefore much easier to make
and resolve. In fact, because the line is drawn so clearly, much greater
compliance will be achieved, because respondents will simply fall into

The potential disadvantage, that the rights set out in the DDA will be
diminished, has not come to fruition in draft Standards so far, but it
is one which must be carefully monitored.

Let me briefly detail progress in these six areas.

In the area of employment a great deal of work was done some years ago
now towards the development of a Standard. However, despite its public
protestations to the contrary, the representatives of industry or employers
were not, and in my view still are not, in favour of Standards in this
area. They support the development of guidelines, and at the time the
work was done it appeared that such guidelines would have to go through
a Regulatory Impact Statement process in the same way as enforceable regulations
or Standards would have to.

HREOC placed on its website, and has regularly updated, frequently asked
questions in the employment area which it believes perform the same functions
as guidelines would have performed. Whilst we agree that they may need
some massaging and greater publicity to be more effective, we think that
they fairly clearly explain the law as it exists in this area. Guidelines
would also do this, but at a much greater cost.

In the current industrial relations environment it is most unlikely,
in my view, that support would be gained from Government or industry for
the introduction of employment standards.

In the area of education work has occurred again over quite a few years
involving Commonwealth and State Governments, the private education sector,
and the disability field, on the development of education standards. There
has been substantial agreement around this table on the content of these
standards, and in fact the Ministerial Council on Education, Training
and Youth affairs (currently meeting in Auckland, the erstwhile capital
of our seventh State) considered late yesterday afternoon or this morning
a draft Standard and Regulatory Impact Statement.

I do not know the result of those considerations. However, several State
Governments, whilst publicly supporting the introduction of such Standards,
have been delaying and disrupting the process by the introduction of largely
unquantified assertions of the huge extra costs which Standards will impose
upon them, and legal opinions which erroneously suggest that the draft
Standards go beyond the powers of the DDA.

The extra costs argument is hard to understand. On the one hand the States
assert that they are currently complying with the provisions of the DDA
in this area. However they assert that the draft Standards, which with
a few minor exceptions do not extend the DDA in my view, will cause them
major extra costs. This is hard to understand if one accepts their first
assertion, and the fact that all of them have had similar State legislation,
in some cases for twice as long as the DDA has been law.

I won't go into the legal arguments that they have mounted in any detail.
However, my assertion that they are nothing but a delaying tactic is supported
by the fact that one large State to which we are very adjacent tabled
its legal advice on these core issues just three weeks before the current
MCEETYA meeting.

In the area of accommodation no work has been done on Standard development.

In the area of public transport you are all no doubt aware that the Parliament
recently passed the Bill allowing HREOC to consider exemptions from the
proposed Standard, in the same way that it considers exemptions from the
DDA. The Attorney has indicated that the Standard will be tabled in the
spring sessions of Parliament, and will hopefully come into force towards
the end of this year or early next.

The RIS process on this standard provides us with some lessons, although
in the case of public transport the regulators, following their acceptance
that the systems did not comply with the DDA, used the RIS process to
assess how much it would cost to achieve change over the time provided
- incrementally over 20 years.

Adoption of the Disability Standards for Accessible Public Transport)
was estimated in the RIS to result in quantifiable costs of $3,744 million,
and quantifiable benefits of $2,655 million.

This process took much longer than any of the participants in this standards
process - industry, government or community - had originally expected
or hoped. I'm told that present and former officers of the Attorney-General's
Department in particular still turn pale when this RIS process is mentioned.
The length of the process contributed perhaps half of the delay that we
have had since transport ministers approved the standards - just to refresh
your memories, that was back in June 1996.

The RIS process was newer to everyone involved then than it is now. But
a major reason why it took so long was related to the decision which was
taken that what had to be assessed was not just the costs and benefits
of standards as a method of implementing the obligations already present
in the DDA and in equivalent State and Territory laws. Instead, it was
the more complex and contentious task of assessing the costs and benefits
of accessible public transport itself.

That decision, although not one which HREOC was happy with in principle,
did assist in having public transport providers, particularly State and
Territory governments, face up to the gap between their obligations under
discrimination law as set out in the standards, and their actual performance.
They then started making substantial budgetary allocations to fill that
gap. So even though we are more than five years adrift from where we should
have expected to be in terms of the commencement of the standards, in
reality a number of public transport providers are already hitting the
first five year targets around now.

The transport standards RIS attempted to identify offsetting benefits
to public transport providers - in particular in terms of increased patronage
- as well as dealing with direct costs. This RIS also sought to identify
cross sector benefits such as those flowing from increased ability to
participate in employment.

The hope of transport providers - both the States and particularly the
private sector - was that since much of this broader benefit might be
hoped to flow to the Commonwealth through reduced call on the social security
system, some Commonwealth funding might follow to assist the movement
towards accessibility. There has been no sign of such funding to date

There is a more general point here that the people who benefit from increased
access will not always be the same people as those who may be asked to
bear the costs. This flows fairly inevitably from the reality that at
present people with disabilities and their families are bearing much of
the cost of inaccessible facilities. So even where we can demonstrate
that the benefits of access are greater than the costs, there will still
be debate about who pays.

In the area of Administration of Commonwealth Laws and Programs again
no work has been done. In my view this has been overtaken to a degree
by some of the work on E-commerce done by the --mission and other organisations,
and by legislative changes such as the Copyright (Digital Agenda) Amendments.
There may still be some work to do here once work has been completed on
other Standards.

In the area of access to premises much work has been done by the Building
Access Policy Committee, with representatives from the Australian Building
Codes Board, Commonwealth Government, and the disability field, on the
development of a DDA Standard which will "mirror" his Australian
Building Code, and bring clarity and certainty to this area. You would
have seen the Directions report and perhaps been part of the consultations
on this issue earlier in the year. It is hoped that a draft will be available
for discussion early in 2003.

Let me turn now to Regulatory Impact Statements or RIS'S. Later in this
session of the seminar we have a presenter from the Office of Regulation
Review who will explain in more detail the RIS process. I have not pre-empted
this explanation, partly because I bow to greater expertise, and partly
because the relevant material I would have needed to study is on the ORR
website as a PDF file, meaning that I cannot access it. As an employee
of HREOC it's a little difficult, but not impossible, for me to lodge
a DDA complaint about this. But perhaps we can resolve this with some
pre-complaint negotiations in the near future.

I want to talk, though, about the role of the RIS in the context of the
DDA. There seems to be an assumption in the disability sector that the
RIS process is about costing the enactment of Standards. In fact, in HREOC'S
view, it is about determining the most effective, efficient and equitable
way of achieving the object of the relevant legislation. It aims to cost
the regulation - in this case the Standard - as a means of delivering
the objective as compared to other means. It is not about costing the
objective itself, as this objective has already been legislated.

Therefore, today's seminar should not be working from the premise that
enough social or other benefits have to be found to in some way "balance
the scales" against all the costs which will be set out. Firstly,
the DDA (not to mention equivalent State legislation) has been there for
a decade, and if the Standard goes no further than the current provisions,
then respondents already face all of those costs. Secondly, the question
of costs is more important, because the question of social benefit has
already been dealt with in the legislation itself.

It's therefore not in some way "evil" or oppositional to discuss
costs in the RIS. Cost has to be one of the considerations in determining
whether Standards are the appropriate way to go forward. There is a fear
on the part of people with disabilities that the costs may come out as
larger than what the sector would want. But we have to live with assessing
the costs. What we need to ensure is that the costs set out in the RIS
reflect measurable and realistic costs; that they are equitable and appropriate.
The sector needs to get involved with cost issues and be the "conscience"
of the process.

It seems to me that the real problem that the sector faces is finding
the resources and the expertise to determine whether this is the case.
Firstly, which organisations are in the position economically to find
such expertise. Expert consultants in the sorts of areas covered by the
Standards do not come cheaply. Secondly, how can it be ensured that such
experts also have expertise in disability issues, or can be "teamed"
with people or organisations who have that expertise. People such as access
consultants are becoming less of a rare species these days, but there
still pretty thin on the ground.

This is the sort of very practical work that can be performed by a Disability
Research Institute. HREOC, within the confines of its limited resources,
could be prepared to financially support such work, and would certainly
encourage other areas of Government, and other funding sources to do the
same. We should also be looking at existing research areas and budgets,
and tapping into both their funding and expertise.

The main benefits set out in a RIS will be the general social benefit
to both people with disabilities and the general community. The social
context and social benefits need to be part of a RIS, but they do not
need to balance the scales or tip them against the costs.

Finally, let me make a couple of general comments about RIS'S. Firstly,
each ris will be different depending on its circumstances. For the transport
Standard the RIS was as described. The access to premises RIS will probably
be of a similar kind. But the RIS on education Standards is different
because it is addressing much more social than structural change. This
would also be true of an employment RIS.

Secondly, we should expect that any RIS will be be maximalist, that is
it will be the best the sector is going to get. If changes occur during
the RIS process they are much more likely to restrict rather than expand
the Standard. So negotiations should occur on that assumption.

I hope that these comments provide us with some useful context for today's
discussions. The Commission will follow the discussions, and the actions
which will need to follow with great interest. To return to my Hendrix
lyric, and to assume that Government and industry form the other part
of the equation, you may not want to kiss this guy, but you're going to
have to do some tough negotiating with him, and you want to be as well
prepared as is possible.