Disability discrimination legislation and its implementation
Hong Kong Human Rights Commission seminar
Director Disability Rights Policy,
Australian Human Rights Commission
When I was invited to prepare this paper, Andrew Byrnes encouraged me to concentrate on drawing out strategic thoughts from the Australian experience which might be relevant in Hong Kong , and perhaps in other countries also. That is what I hope to do, rather than spending much time simply reciting that experience or the terms of Australia 's legislation.
Much of the work of basic information sharing can be done through the Internet. In particular, the text of Australia 's Disability Discrimination Act (“DDA”), and decisions of the Human Rights and Equal Opportunity Commission under it are available through the Commission's home page . So too is an expanding range of other material: guidelines issued by the Commission; discussion papers on proposed regulatory developments; decisions on applications for exemption; draft Standards proposed to be issued under the legislation; and regular updates from the Disability Discrimination Commissioner on these and other policy developments and on outcomes of complaints conciliated without going to formal determination by the Commission.
The DDA has as its first object the elimination of disability discrimination as far as possible. It has been important, I think, in Australia to recognise that the object really is the elimination of discrimination, not something more modest and manageable like providing remedies for a few complainants. This is not at all to dismiss the importance of effective provision for complaints of discrimination. My point is that much of such success as has been had under Australian disability discrimination law has come from the recognition and use of complaints as a driving force for other, structural measures rather than resolution of individual complaints being regarded as effective, or the major end, in itself.
If the objective of eliminating discrimination is taken seriously, it is obvious that we are talking about social change on a very large and ambitious scale. In the drafting of the international Covenants on human rights, one of the negotiators (Rene Cassin) pointed out that "it would be deceiving the peoples of the world to let them think that a legal provision was all that was required ... when in fact an entire social structure had to be transformed"1 .
This point is particularly apt in talking about eliminating disability discrimination.
Disability discrimination requires particularly active measures
Disability discrimination can arise in the same ways as race or sex discrimination: from prejudice or fear of difference; from restrictive social roles and assumptions that a particular group is not entitled to fully equal participation in the life of the community; from inappropriately applying generalisations to individuals based on group membership; from the results of past inequality affecting ability to acquire qualifications. But there are also other dimensions to discrimination which are more obviously important in relation to disability.
It is possible, though wrong, to interpret and administer race or sex discrimination legislation as if all that is required is a passive refraining from discrimination: ensuring “colour blindness” or “gender neutrality” and treating the relevant ground of discrimination as simply irrelevant to permissible decision making. Such interpretations have at times found favour with courts and tribunals in Australia.2 Clearly, though, in some cases “neutrality” can entrench rather than prevent discrimination. For example, claims for recognition of and respect for the prior rights of indigenous people in Australia are met, in ignorance or bad faith or both, with claims that there should be no special rights based on race and that we should all be equal under the law.
With disability it is clearer that simply “treating equals equally” is not sufficient for eliminating discrimination. It is also more readily – sometimes too readily – accepted that disability makes a relevant difference. In Australia at least people with disabilities have long been systematically defined out of various markets, client and customer groups and other aspects of citizenship and community. In many cases this has taken very solid form: buildings that not everyone cannot get into; transport and communications systems that not everyone can use; information that not everyone can receive; education systems not designed to accommodate everyone capable of or entitled to benefit from them. It is thus particularly important in relation to disability to recognise the degree to which eliminating discrimination requires active measures. While the distinction between anti-discrimination and affirmative action is often over-stated even in relation to race and sex, the elimination of disability discrimination clearly requires actions which might as well be termed affirmative.
Problems of definition and mechanisms for dealing with discrimination
This is not to say that the Australian legislation perfectly addresses the meaning of discrimination or the requirements of eliminating discrimination.
The Australian legislation follows the conceptual model developed by courts interpreting the United States Civil Rights Act, categorising discrimination into direct discrimination, or different treatment on the basis of the ground of discrimination, and indirect discrimination, or treatment which may be applied equally but has a disparate impact. This may explain statements which are regularly made that the Australian Disability Discrimination Act is based on the Americans with Disabilities Act. This is not completely accurate.
Definition of disability
In particular, in the drafting of Australia's DDA the definition of disability in the United States Act was seen as a model to be avoided rather than followed, with its emphasis on whether a person is “limited in a major life activity”.3 Experience with the U.S. legislation has supported concerns held in Australia in this area. A large proportion of the pages in the extensive regulatory and guidance materials issued under the Americans with Disabilities Act is taken up with issues of the identification of who is, and is not, a person with a disability.4 This not only seems a misdirection of effort and attention away from the real objective of eliminating discrimination. It suggests that we are talking about a dangerous protected species, and could be expected to encourage a reaction from employers and others that the safest thing to do with people with a disability is avoid having to deal with them.
Reasons for a restrictive definition of disability like this may include an understandable desire by people who have to live with permanent and major disability to ensure that they are the main beneficiaries of disability discrimination legislation, rather than attention and administrative resources being dissipated in addressing more transitory or trivial conditions. I will return later in this paper to issues of who has benefited most so far under the Australian legislation. There are also issues of political credibility of legislation if minor ailments are treated as disabilities. But a restrictive definition of disability is an ineffective method for dealing with these issues and works against the legislation achieving its objects.
People with a disability, seeking the assistance of anti-discrimination law in asserting their ability and entitlement to participate equally (with any assistance and accommodation which may be required and to which the law entitles them), may - paradoxically - find it necessary to argue that their ability to participate is in fact limited by their impairment in order to qualify for the protection of the law. The US Equal Employment Opportunity Commission's regulations implementing Title I of the ADA 5 indicate that a person with a disability may be denied a remedy for discrimination if he or she only faces exclusion from a particular job or small class of jobs and not from the whole activity of employment. 6 These provisions also seem, at least to an outsider to the complicated world of ADA regulation, to be arbitrary and ineffective at times in the attempt to distinguish between “real” and “less real” disabilities. 7
A major strategic choice at the outset in Australia was to present disability discrimination legislation not as rights of a special group but as the rights which any of us have if we happen to have a disability now or acquire one in the future. It would be not just ironic but dangerous for discrimination law itself to reinforce a view of disability as something which happened to “them”, and of people with a disability being a group defined out of the mainstream of the community. Recognition of disability as simply a part of the human condition provides definite strategic advantages. It requires a moral effort to place ourselves in the position of someone of the opposite gender, or of a different racial background, or who has a different political opinion or sexual preference. But disability is something that can happen to any of us, and as we live longer it increasingly probably will.
Approaches to discrimination
Some features of the DDA were influenced by U.S. models, but most of the structure, for better or worse, was in fact based on or borrowed from Australia 's Sex Discrimination Act. The drafting of the DDA also owes a heavy debt to Australian State anti-discrimination laws and recommendations made by the agencies administering them. Some features of the Americans with Disabilities Act were regarded as highly desirable but were not followed because they were not politically achievable in the Australian environment at the time.
The regulations under Title II of the ADA include mandatory provision for self-evaluation by State and local government agencies of their compliance with the legislation, and require transition plans to be developed for the elimination of any barriers identified in a self-evaluation.8 This provision follows a similar requirement for Federal government agencies under the Rehabilitation Act of 1973. The DDA 9 provides for the development of “Action Plans”, both by public and private sector service providers. These are similar in intent to transition plans under the ADA but the legislation only invites development of such plans, rather than making them mandatory.
The Federal government did however make Action Plans compulsory as a matter of executive decision for Federal departments and agencies under the Commonwealth Disability Strategy adopted in 1994. 10 Not all agencies complied with the target date set of 1997 for lodging these Action Plans. As at September 1998, six Departments out of 17 and 20 agencies out of more than 120 had lodged plans. It also remains to be seen how much change is resulting from those plans which have been adopted. Agencies have been required to submit progress reports on their implementation of the Commonwealth Disability Strategy. 11 But there has not yet been any systematic audit of DDA compliance by Federal government agencies comparable to that done for the U.S Government in relation to compliance of its agencies with the Americans with Disabilities Act, or an across the board audit of compliance on particular issues such as accessibility of premises, communications and information.
The Australian Government has commenced an evaluation of the effectiveness of the Commonwealth Disability Strategy so far and the Human Rights and Equal Opportunity Commission is participating in that evaluation.
Disability standards under the DDA
One feature which the DDA did pick up from the Americans with Disabilities Act, and from submissions from the disability community, was the need for more detailed standards, to translate general concepts of discrimination into terms which gave more specific indications of what was required and which organisations with obligations under the Act could therefore more readily understand, comply with and be held accountable for complying with.
Most of the “extra” issues which disability discrimination presents, and in my view most of those where anti-discrimination legislation can make a decisive difference, need to be analysed as indirect rather than direct discrimination. The problem is in many cases not that people with disability are treated differently and directly excluded from buildings or transport or communications and information because of disability. Rather, these pieces of the world are the same for everyone but have not been designed in a way that people with a disability can use.
It is commonplace among anti-discrimination lawyers, in Australia at least, that establishing indirect discrimination in litigation under the sort of provision contained in the Sex Discrimination Act and the Disability Discrimination Act presents substantial problems of evidence and interpretation. In my view a much more important issue for disability discrimination at least is not the complexity of litigating under these provisions, but the difficulty of understanding and complying with their requirements without litigation.
The availability of procedures for complaints resulting in enforceable orders is clearly an important incentive to compliance with legislation. But no legislation is going to be very effective if it is only or mainly complied with when compliance is ordered by a court or tribunal. We can expect only limited success in achieving compliance if the legislation has no reasonably definite meaning reasonably clearly ascertainable in advance of judicial interpretation. The existing indirect discrimination provision states, in effect, that it is unlawful to impose an unreasonable condition or requirement which has a disproportionately adverse effect on people with a disability compared to people without that disability. It can be seen that I am already simplifying the words of DDA section 6, and still not ending up with a statement which is particularly clear.
It is not going to be inherently obvious to everyone whose organisation operates from a physically inaccessible building; or provides information only in print on paper; or gives only a voice telephone contact point, for example, that they have imposed a “condition or requirement”, or that this will disproportionately exclude people with some types of disability, let alone whether this is unreasonable. It certainly is not going to be inherently obvious what to do about it.
For example, it is clearly impossible to expect all buildings to be designed to be equally accessible and useable by people with a disability, simply by reference to the terms of a general indirect discrimination provision. The same applies for an equally accessible telecommunications or transport system - even if we add some attractively presented pamphlets from anti-discrimination agencies and some precedent-setting case law.
Some advocates for people with a disability in Australia have been opposed to the development of standards under the Disability Discrimination Act on the basis that to define rights may limit them. This is of course an old argument, advanced against the adoption of the United States Bill of Rights and more recently used by opponents of a Bill of Rights for Australia . In the first case the argument was sincerely put, but has not I think been treated well by history. In the second case, it is reasonably clear that some proponents of this argument were concerned not to preserve but to prevent more effective protection of human rights.
I do not question the sincerity of the holders of this adverse view of DDA standards but I think that on this issue their strategic judgment is as questionable as the intellectual company they are keeping. Time spent waiting for the Really Big Complaint, that may be just around the corner and that will compel widespread compliance at a higher level than any negotiated set of standards, is of course time during which more inaccessible buildings are built, more inaccessible transport vehicles are put into service, more development of communications technology occurs without incorporating accessibility. It is also time wasted from the lives of people with a disability during which they might have enjoyed greater access and equality, rather than accepting continued exclusion as the price of an uncertain prospect of the achievement of an enthusiast's ideal vision of rights somewhere in the future. This does not mean that regulations or standards are necessarily the best road forward in every area. The issue, though, is more that in some instances development of standards may not be worth the effort it takes rather than that standards, if developed, will diminish rights. I will come back to this later in this paper.
The Americans with Disabilities Act specified dates by which regulations had to be made setting more specific standards on various subjects. In the DDA it was only possible to secure provision that Standards could be made, not that they had to be by specified dates, and even then the power to make Standards is more restricted than the areas covered by the Act. The reasons for this are confusing even to those closely involved in the development of the legislation. A major factor however seems to have been concern from a number of major areas within the Federal Government that standards would make the legislation more effective, and therefore potentially more expensive for business and for government itself, compared to a purely complaint based regime.
The ADA allocates responsibility to different agencies for developing regulations in different areas, to give effect to its purpose of eliminating discrimination. The Secretary of State for Transport was given responsibility for bringing forward regulations on transport, for example, and the Federal Communications Commission has major responsibilities for accessibility of telecommunications services and other aspects of communication such as captioning of television and video programs.
There are great advantages in this kind of approach. An agency specifically responsible for regulating an area such as building access, or transport, or communications, can be expected to have greater expertise and institutional authority in that area, and better knowledge of the interests affected, than an anti-discrimination agency can. In the DDA, though, all direct responsibility for standards development was left in the law and justice area of government. The Attorney-General was nominated 12 as the minister who may make standards in relation to employment, education, transport, accommodation or the administration of the Federal government's own laws and programs. The Human Rights and Equal Opportunity Commission was the only agency nominated 13 as having a responsibility to advise on the development of standards. This, of course, was in addition to general responsibilities for promoting understanding and awareness of the legislation; receiving Action Plans; dealing with applications for exemption; and handling complaints.
Initial strategic planning issues: how could the DDA make a difference?
Faced with a broad palette of legislative responsibilities and a broad canvas of changes needed to achieve the objects of the legislation on different issues affecting a diverse range of people with a disability, we did what government agencies usually do. We tried to produce a strategic plan which would give us both a manageable set of priorities and good prospects for large scale effectiveness. One of the first issues which we had to try to face up to without conceding defeat at the outset, was why or how the DDA could be expected to make any real difference.
By the time the DDA entered into force, state or territory legislation on disability discrimination was already in force or well advanced in development in every Australian jurisdiction other than Tasmania as part of more general anti-discrimination Acts. Despite some differences of detail in definitions of disability, exceptions and defences provided for, in most points this legislation was similar to the DDA. Similarities included provision for complaints to an agency responsible for investigation and conciliation but with recourse to enforceable remedies if required; and using similar models of direct and indirect discrimination. In some states, the administering agencies had pointed to gaps and defects which in their view severely restricted the effectiveness of the legislation in relation to disability. As I have indicated, the drafters of the DDA gratefully accepted this advice. In other states, administering agencies promoted the legislation in their jurisdiction as generally a model for others to follow.
Despite this, the disability community represented very strongly that national legislation was needed, and needed to apply generally rather than only to those areas which state legislation had not dealt or could not deal with such as the Federal government's own administration. Their overwhelming view was that the disability discrimination provisions included in general anti-discrimination laws had not been highly effective in achieving change on any large scale beyond the individual outcomes of complaints.
That may have been too pessimistic a picture, and may have been unfair to the people who drafted or administered pre-existing State laws. In some areas, such as employment and education, changes towards greater inclusion and equality could be seen through the 1980s and into the 1990s prior to the introduction of the DDA, even if it is very difficult to assess what the contribution of anti-discrimination laws was to those changes. There was also plenty of evidence available, however, of change not occurring, or not occurring enough in the right direction: buildings still being built or renovated to be inaccessible; very limited accessibility of telecommunications systems; most public transport still being designed and operated on the basis that people with a disability are not part of the public.
Australia 's first Disability Discrimination Commissioner put forward two parts of an explanation. The first is in the response of people with a disability to general anti-discrimination laws. People who are accustomed to segregation into specialised services and facilities may not believe that a mainstream general anti-discrimination law actually is intended for their use. In this sense having a specifically named Disability Discrimination Act may serve as the access symbol on the door of a structure which in other respects, perhaps, is not hugely different in its accessibility from the surrounding structures of state laws, and which is not universally superior where there are differences. This might also explain in part why State and Territory governments and others with obligations under the DDA sometimes speak as if the DDA were the only applicable law in the area, rather than there being fairly closely parallel State or Territory legislation in all jurisdictions other than Tasmania. Of course, it might also be convenient to approach obligations to eliminate discrimination as a unilateral mandate from central government for which the central government might be expected to pay, rather than as also existing under imperfectly fulfilled commitments of those governments themselves.
The second point is the need which I have referred to already for active measures to deal with disability discrimination, rather than relying principally on complaint resolution.
Need for policy focus
The Australian government has decided that a dedicated position of Disability Discrimination Commissioner is not required to be maintained within the Human Rights and Equal Opportunity Commission. The Commission is certainly not responding by giving up the task. But it has been important to have, and I think it is still essential to maintain, a strong and distinct policy focus on disability discrimination. This need not mean and has not meant a vast bureaucracy. Staffing of the disability discrimination policy function in the Human Rights and Equal Opportunity Commission has been from 3 to 5 middle ranked public servants. One of the conclusions most reinforced by experience under the DDA is that an anti-discrimination agency does not need to be directing everything, and in fact will generally be more effective when it is informing and catalysing activity by other agencies in government and organisations in society. This is not to say that we could not use moderately larger resources than we have had to achieve more. But the modest staffing that we have had has been in itself a much greater resource than available to any of the state or territory agencies for this purpose. In my assessment, while the major reduction in staffing we experienced at the end of 1997 has reduced the number of issues the Commission can engage with, it has not seriously reduced our effectiveness.
People with a disability an important constituency but not the only one
Reassured by reflections of this kind that the task of using the DDA towards eliminating discrimination did not need to be abandoned at the outset as hopeless, we returned to the strategic planning process. An early and I think clearly correct decision in principle was that people and organisations with obligations under the legislation were at least as important a constituency as people whose rights the legislation was concerned with promoting. This has not always been an easy principle to adhere to. There is a strong temptation for agencies concerned with social justice to spend most of their time talking to people who already agree with them. Among disadvantaged people there can be a strong expectation that an anti-discrimination agency should take their side: so much so that any attempt to take into account the concerns of people with responsibilities can be perceived as bias or selling out.
This said, we did decide to make a major focus of educating representatives and advocates of the disability community: because of the importance of informed and effective use of complaints mechanisms as a driving force for achieving the objects of the legislation, and because of the importance of the input of people with a disability for the other mechanisms provided under the Act, including development of Action Plans and Standards. We invested considerable time and resources in developing a manual on using the legislation for advocates. The Commission had a major part in the decision to establish specialist disability discrimination legal services, using resources which had been allocated by government for (not very precisely defined) promotional and advocacy purposes. These had an intended role of informing and training disability community organisations, as well as assisting the preparation of key cases or arguing these themselves.
Some highly important cases have been brought with the support of the specialist legal advocacy services: in particular those in relation to transport and telecommunications which I will discuss in more detail later. However, in my view there has been less impact than hoped for in raising the ability of disability community organisations to use the legislation effectively themselves. Comments were sought from disability community organisations on the Commission's draft strategic plan for the DDA. Regular meetings have been held to discuss the progress of projects within this plan and to discuss overall priorities. Standards development processes have featured lengthy and extensive community consultation as well as formal representation of disability community organisations on steering committees.
Input from these organisations is clearly important, but the methods we have used to date have in my view been disappointing in the results achieved compared to the resources invested: by the Commission and by organisations and individuals in the disability community. One of the things we clearly need to do as we complete five years of the DDA is to review how we are consulting with the disability community and the purposes for which we are consulting. The amount of attention that has been given to standards development by disability community organisations and by the specialist legal advocacy services may have been at the expense of some potentially effective use of the legislation as it already is. The Commission needs to keep looking closely at the level of priority it is giving to different strategic mechanisms in different areas under the DDA. I think we need to encourage and assist other organisations to do the same. Like any regulatory activity, standard setting under the DDA is not an end in itself but a means to be adopted where the outcome, or even the development process itself, are likely to produce increased compliance sufficient to justify the effort relative to other uses of time and resources.
Information and education campaign
A substantial part of the first year of the Commission's work and budget for implementation of the DDA was the development of a community information and education campaign, aimed both at people with a disability and at organisations with responsibilities under the legislation. This campaign was very carefully planned to make the most effective use of a limited budget. It was generally very well received at the time, and there is still substantial demand for some of the campaign materials such as booklets and posters. But there is now evidence that the campaign had only patchy success in generating awareness of the existence or effect of the Act, even among the disability community, and less still among some important sectors of people with responsibilities.
One response would be that larger scale community education efforts are required. The Federal Government's Office of Disability is in fact in the early stages of planning a campaign about disability discrimination, which we hope may extend what the Commission was able to achieve. Another response would be to reflect on evidence from the United States experience. Information and awareness, education and training efforts regarding the Americans with Disabilities Act have far exceeded anything we have been able to do or attempt in Australia . Even so, there has been evidence of disappointingly low levels of awareness of that Act both among people with a disability and in business.
Perhaps the conclusion should be that not too much should be expected of education campaigns, general or targeted, at least as an initial strategy. My own view is that, in the Australian context at least, information, education or advertising campaigns directed at changing attitudes have at best a subsidiary place in eliminating disability discrimination. Attitudes towards people with a disability as objects of pity or fear, best segregated in separate accommodation and education and employment and services if they are thought of at all, are I think more likely to change under the impact of experience of people as equal participants in mainstream activities: as work colleagues; as classmates in school or university or college; as customers and so on. On this view, in Australia at least our principal focus should continue to be on institutions and structures that perpetuate exclusion and marginalisation, with attitudes seen only as part of this.
Experience can also educate people and organisations in the other direction, to treat requirements of anti-discrimination laws as less than compelling. I think there has been something of this effect in the Australian experience prior to the DDA. General discrimination provisions were theoretically in force but, as I have argued, it was very difficult in many cases to ascertain in advance what was needed to be done to comply. In these circumstances, it would not be surprising to find many people with responsibilities deciding to manage the risk of liability for discrimination by ignoring it. The prospect of a successful complaint might be regarded as being as severe as being struck by lightning, but about as unpredictable and unlikely. Experience under the DDA has done a lot to shift these perceptions, although the shift is certainly not uniform across all the areas that the legislation deals with.
Let me talk now about some of our areas of greater success.
Complaints about lack of equal access to public transport provide perhaps the most striking example of the effectiveness which complaints under the DDA and its equivalents can have if used effectively and linked to other mechanisms such as those the DDA provides for action plans, standards and exemptions. A small handful of such complaints under the DDA 14 have led, in sequence, to agreement that a particular new railway station would be accessible rather than inaccessible to people with physical disabilities; a commitment that all new railway stations in New South Wales would be designed for access for all people with a disability; agreements regarding accessibility of new city buses in Darwin, Adelaide, Perth and Sydney; agreement by all Transport Ministers to a strategy including accessibility of all new public transport facilities and services throughout Australia, and all existing services and facilities within 20 years; and development of draft Disability Standards under the DDA to give effect to this strategy.
The draft Standards are currently subject to the Regulatory Impact Statement process which new regulations developed by joint Federal - State processes must undergo before authorisation. This process has been protracted but is expected to conclude by December 1998. The Commission recently issued an advisory note on public transport under the DDA pointing out the extent to which the draft Standards did not impose new regulatory burdens but rather reflected and clarified existing legal requirements under the DDA. 15
Crucial to these processes was a complaint from an individual young woman who would not accept that she should not be able to use, like any other student, a railway station being built to serve her university. This would not in itself have been sufficient to produce the results described without active policy intervention and without legislative structures into which strategies could be fitted.
Part of the impact of the initial railway station complaint was a result of the Commissioner writing to and meeting with the relevant Minister for Transport to point out the potential for similar complaints to delay other major developments such as the railway lines being built to serve Sydney Airport and the facilities for the Sydney Olympics, and the obvious need to avoid this delay. Part of the Minister's response was for his department to take a leading role in the development of draft standards on public transport under the DDA so that public transport providers could plan and implement services and facilities on the basis of more certain and more practically described obligations.
In South Australia and Western Australia the key to forward movement, after a stimulus provided by complaints, has been the ability of the Commission to grant exemptions. Exemptions were granted to transport authorities while, and on condition that, they implement voluntary action plans under the DDA, which they had developed in consultation with the disability community. The Western Australian authorities did not seek an extension of the initial one year exemption they received. They appear to be confident that their broad ranging Action Plan and the progress being made in implementing it are sufficient to manage the risk of complaints rather than needing the protection of a further exemption. In South Australia the initial action plan and the initial exemption were more narrowly based, dealing principally with access to buses by people using wheelchairs. A broader exemption has now been applied for and granted, on the basis of a revised action plan which addresses a wider range of service issues and types of disability.
Education Ministers have commenced work towards standards under the DDA to define more clearly the requirements of equality of access in all levels of education, and the limits to those requirements. This initiative was inspired fairly directly by the progress made by the equivalent initiative of Transport Ministers and by the increasing number of complaints in the education area under the DDA and under the disability discrimination provisions of some of the State Acts. It must be said, though, that these processes have been running for considerable time and we are still to see either clear indications of what a draft standard in this area would look like or definite commitment by Ministers to standards as the preferred option. Education was identified in our strategic planning process as probably the area of most universal relevance across types of disability, and is clearly crucial to people's prospects of equal opportunity and participation in society. I do not think, though, that it can be said that we have yet had the decisive impact on equality in education that has been hoped for. We will be looking closely at what strategies can be pursued alongside or as an alternative to the development of standards on education in coming months.
Access to buildings
Decisive changes in the area of access to buildings have flowed from a complaint in 1994 (made under the State legislation rather than the DDA) that the front entrance of the Brisbane Convention Centre, then under construction, was not accessible. Although the access which was provided complied with the Building Code of Australia, it was held that this did not necessarily constitute compliance with anti-discrimination law. This brought into sharp focus that none of the anti-discrimination laws specify, and none of the agencies administering anti-discrimination law can advise with authority, what does constitute full compliance with the law in this area.
Such a situation might have been met by moves to have major projects exempted from discrimination laws - as they frequently have been from planning and environmental laws for example - on the basis that people building major facilities cannot be expected to live with complete uncertainty about whether they will be allowed to complete the project or will be restrained by interim orders under discrimination laws. Instead, in co-operation with the Commission and the disability community, the regulatory authority responsible for this area, the Australian Building Codes Board, is working towards revision of the Building Code of Australia so that it will be more consistent with the DDA. The Board is about to decide on very substantial revisions to the building code and is also committed to continuing revisions in the interests of improved access. The Commission provided impetus for these processes in direct negotiations with the Building Codes Board. It also issued advisory notes, or guidelines, under the DDA indicating views on the existing level of obligations. I believe that these advisory notes have assisted progress in the revision of the Building Code, by making clear that (as in the transport area) improved access requirements were not in substance a new imposition of regulatory obligations but a reflection of the meaning of existing anti-discrimination law.
One of the intended outcomes of these processes is that a suitably revised building code should provide a possible basis for a Standard under the DDA on equal access to premises. This would not be done to establish the DDA as a competing regulatory regime for buildings. If the building code can be made sufficiently consistent with the objects of the DDA it would be desirable to have standards providing conclusively that design and construction which complies with the code complies with the DDA. There could also be a role for standards in this area in dealing with issues that the building code does not deal with. In particular, the building code deals only with new construction and major renovations. It does not specify (and the revised code is not expected to specify) comprehensively what measures of upgrading of accessibility of existing buildings are required, by when and in what circumstances.
It may also be, however, that development of a set of standards that provides detailed requirements for the transition of existing buildings to accessibility is too complex a task to be achieved, considering the range of buildings which exist and the diversity of the circumstances of people responsible for them, unless the standards are restricted to particular buildings such as those used by the Federal government itself. A standard on this issue for buildings more generally might not do much more than restate the existing requirement to provide equal access where this can be done without unjustifiable hardship. It may be that more detailed direction in this area should be sought through the other mechanisms under the legislation, including by the interaction of guidelines, action plans and exemptions.
Much of the work I have described has concerned physical access. This has certainly not been an exclusive focus, however. The issue of equal access to telecommunications for Deaf and hearing impaired people and for people with a disability generally has been high on the lobbying agenda of disability organisations in Australia . No issue received more political attention during the passage of the DDA through Parliament. But again, it was a simple individual complaint - albeit supported by a representative organisation and by one of the disability discrimination legal centres referred to earlier - which had the most impact.
From Mr Scott's complaint that as someone who needed a telephone typewriter he did not have equal access to the telephone network as someone able to use a standard handset, we have seen agreement by Telstra (Australia's principal telephone service provider) to provide telephone typewriters (TTYs) to anyone with sufficiently established need, including not only deaf people such as Mr Scott but people with speech impairments. Shortly afterwards Telstra decided to produce an Action Plan for equal access across the full range of their services, and has now launched that plan. During 1997, under Australia 's new telecommunications law, we saw incorporation of disability access requirements, at least in general terms, in the definition of features of a standard telephone service which telecommunications service providers are required to comply with. This also appears to have resulted at least in part from Mr Scott's complaint. (The history of this case however also illustrates the limits of anti-discrimination law: the Commission has been informed that Mr Scott himself has not been able to afford the cost of keeping the phone service to which he fought to have access.)
The Telecommunications Act defines the obligations of providers by reference to the DDA, but provides only limited clarification of those obligations. The Commission has been preparing to commence development of guidelines under the DDA on requirements for equal access to telecommunications (not only for Deaf people and others using TTYs but on any features of telecommunications facilities which may present barriers to equal access for people with various disabilities). It has deferred commencement of this process because of advice from the Department of Communications and the Arts that the government is preparing to exercise its own power to regulate these issues under the telecommunications law. The Commission has indicated that it would prefer to assist in this process rather than running our own competing process under the DDA, but that if the development of regulations under telecommunications law is unduly delayed the Commission will proceed with a guideline development process under the DDA.
Other action plan development
The development of Action Plans by major organisations has now achieved some momentum of its own, with some organisations which have not themselves been the focus of significant complaints following the example of others who developed action plans as part of a response to the complaint process. Of these one of the most encouraging has been the National Australia Bank, currently the market leader in Australian banking and one of Australia 's most successful corporations. The Commission hopes that this organisation having voluntarily committed itself to a program of eliminating disability discrimination will inspire other corporations to do likewise, both in the banking sector and generally. There are positive signs that this is in fact happening.
Again, this developing recognition by corporate Australia of the benefits of achieving effective access for people with disabilities as customers and equality of opportunity to contribute as employees has not come about by itself or by virtue simply of the existence of the legislation. The Action Plan mechanism was identified in our strategic planning as a key to the success of the DDA. We planned to produce a guide for organisations interested in developing action plans; we ended up producing five guides addressed to different sectors and assisting in production of a sixth. We are presently developing a more extensive program of workshops to assist organisations to produce effective plans rather than only plans which meet formal planning criteria but do not produce substantial change towards equality to justify the effort. We are also working to develop more extensively other means of encouraging and assisting development of action plans. As part of this we are reviewing our priorities for the areas we address and the types of organisation we work with.
Limitations of strategic planning
From what I have said I think it will be apparent that some of the actions which we have invested time and money in, based on our strategic planning, have had only limited success and relevance to what has happened subsequently. Some strategies and areas of activity by contrast have expanded far beyond their original place in the plan.
This is true for some types of activity: work on development of standards; work to promote action plans; and in particular work in considering applications for exemption under the legislation. It is also true that some areas of social life covered by the legislation have received more than the share of attention which we planned for in trying to focus on areas where the greatest impact could be achieved while also attending to issues of which areas presented disadvantage to the widest range of people with a disability.
I do not think that it is actually a significant problem that the work that we have done varies from the work we planned to do. What we have done is to try to take opportunities and follow up success where we found it rather than stick to a five year plan for its own sake.
Henry Mintzberg, in his “The Rise and Fall of Strategic Planning” 16, argues in detail that “strategic planning” has severe limitations as a group of models which rest on the assumption that planning produces strategy. He offers the First World War battle of Passchendaele as a model of a highly planned activity which produced massive and protracted disaster: because of events which the planners did not foresee (principally the very simple event of rain and shellfire turning ground into deep mud), and because of continued following of the plan despite those events. He argues that strategy is a process of learning, not planning; that strategic thought should avoid both the failure to focus and the failure to change; and that the proper purpose of planning is not to create strategies, but to elaborate and operationalise the consequences of strategies created.by other means.
Some military analogies
In my view some of the most useful sources for assisting strategic thought in relation to disability discrimination are some major works on military strategy. Before concluding that this is too eccentric a view, derived from frustration at the achievable pace of social change and perhaps from too much exposure to the films of Clint Eastwood or Arnold Scharzennegger, permit me to explain further. I am referring in particular to Sun Tzu's classic “The Art of War” 17 and to B.H. Liddell Hart's “Strategy” 18. These works seem to have achieved considerable currency in business management circles. They are less prominent in public policy discussion, but I have found them increasingly useful in organising thoughts on past experience and current strategic choices in the administration of the DDA. 19 I would like to discuss the experience of implementing the DDA by reference to some principles from these works.
First, two principles culled from The Art of War :
To win without fighting is best. Capturing your opponent's territory or his army undamaged for your own use is superior to destroying it .
These observations, I think, support what I have said about the attractiveness of the model for regulatory responsibility under the Americans with Disabilities Act, where for example accessibility of telecommunications is regulated principally by the general telecommunications regulator. A human rights agency in the position of the Human Rights and Equal Opportunity Commission has neither the expertise nor the authority nor sufficient personnel to regulate everything itself. As far as possible the aim should be to have access and equality built in to the ordinary way of doing things rather than being an additional set of requirements subsequently imposed from the margins.
It is important in my view for an anti discrimination agency not to succumb to the usual rhetoric such as that “The Human Rights and Equal Opportunity Commission administers the Disability Discrimination Act”.
No: every organisation with responsibilities under the legislation administers the Act; the Commission at best assists in and monitors that administration.
(In early discussions of the establishment of a national telephone typewriter relay service to provide increased telecommunications access for Deaf and hearing or speech impaired people, it was seriously suggested by one government department that the Human Rights and Equal Opportunity Commission should administer this service, since it was a service which was about removing disability discrimination. The absurdity of this was realised when the Commission pointed out that on this basis we should also run accessible bus and train services, and indeed virtually everything else.)
The process of revision of the Building Code of Australia to better meet the objects of the DDA and the development of draft transport standards by transport ministers have been good models in this respect. Each process has closely involved the relevant industries as well as people with disabilities. Another excellent model in this respect I think has been the development of accessibility principles by the U.S. Federal Communications Commission and US Access Board, through a Telecommunications Accessibility Advisory Committee comprising industry and consumer experts. 20
There is a legal as well as political case for anti-discrimination agencies to adopt codes developed by other regulators so long as this advances the object of eliminating discrimination, even if the agency itself thinks that a more perfect version could have been developed.
Indirect discrimination under the DDA involves imposing a condition or requirement which has a disadvantageous impact on people with a disability and which is unreasonable. It must be recognised that designing to a standard will disadvantage or exclude some people. Access specifications are generally designed to meet the needs of a high proportion of users in relation to any particular requirement, such as ability to negotiate a certain slope unassisted or pass through a certain sized opening, or to use a piece of equipment such as a phone or an automatic teller machine. Whether a Standard addresses the needs of the “least disabled” 80% of wheelchair users, for example, or 90%, or 95 or 99%, some excluding effect will occur. The question under the DDA will then be whether this exclusion is reasonable.
In my view it should be accepted that, in general, it will be reasonable for a provider to rely on the most inclusive specifications available in designing or selecting premises, conveyances or equipment, even though these specifications do not provide universal access. (Designing to a less inclusive standard may be permissible, depending on the circumstances, by reference to the concept of unjustifiable hardship.) As I argued earlier, design and construction of buildings, conveyances and associated equipment and facilities necessarily, or at least reasonably, often requires the use of specifications, rather than being possible by reference solely to generalised objectives to provide access. It would not be reasonable to require that construction or installation of new premises, conveyances or equipment, or upgrading of existing facilities, must await further processes of revision of standards. To require in effect that improvements in accessibility must be deferred, pending further refinement of access requirements, would not in my view be consistent with the object of the DDA of eliminating discrimination as far as possible.
Some more principles from Sun Tzu:
Give an enemy at bay a way out or they will certainly fight desperately. Do not hinder a foe fleeing home.
I refer to these points to emphasise the importance of provision for negotiated outcomes: in the conciliation process itself; in provision for action plans and the making of connections between action plans and temporary exemptions; and in negotiated processes of standards development.
It may seem perverse to present giving exemptions from legislation as a mechanism for achieving compliance with that same legislation. But like any statutory power, the exemptions power in the DDA has to be interpreted and applied in a way that promotes the objects of the legislation. The policy which the Commission has adopted on dealing with exemption applications emphasises that the purpose of the exemptions power is to assist in managing the transition to non-discrimination, not to certify discrimination as permanently acceptable. This policy indicates that the Commission will look for evidence on factors including: why immediate compliance with the DDA is not possible or why immediate compliance with the DDA, though technically possible, should not be required; processes and results of any review undertaken by the applicant to identify discriminatory practices or circumstances and means for their removal; in particular, details of any consultations undertaken with people with a disability for these purposes; any measures already implemented or planned by the applicant to achieve the objects of the DDA including through an Action Plan; terms or conditions which promote achievement of the objects of the DDA and which the applicant is prepared to meet as a condition of receiving the exemption. As I have noted, conditional exemptions have been a significant part of achieving progress in access to public transport and may be important in some other areas in future.
I turn now to some principles from Liddell Hart's “Strategy”:
Adjust your ends to your means
The means directly available to the Human Rights and Equal Opportunity Commission for achieving the elimination of disability discrimination are limited and I would expect this to be the case for anti-discrimination agencies in other jurisdictions. We have a small number of staff. Our own areas of directive legal authority are limited. In any case, as I have suggested earlier, the effectiveness of any law will be limited if it operates only as a set of direct legal commands. This reinforces the need to focus on acting as a catalyst for activity by people and institutions with obligations under the legislation, and by other regulatory authorities, rather than seeking to exercise authority directly in all cases.
Adapt your plan to circumstances while keeping your object in mind
One of the things that has been effective in working to implement the DDA has been adopting a principle of strategic opportunism. While trying to have a broad plan of where we are going and how we might get there, we have been committed to seizing opportunities where they arise, in particular as a result of important complaints. One aspect of this has been that we have attempted to concentrate on following up success – most notably in the transport area – rather than diffusing resources in too many areas. This might be criticised as leading to neglect of some important areas, or emphasising issues of importance to people with some types of disability over others.
My responses to this would be that, first, uneven or messy success is better than uniform or neat failure; second, there is no perfect other way of selection; and third, to recall that success in one area such as transport may offer a model for later success in another such as education.
Take a line of operation which offers alternative objectives
This principle has been reflected in our work on standards under the DDA. In the areas where Standards can be made, we have pursued the development of Standards. This has not been because of a fixed and final view that standards are the best approach in each area, or a belief that adoption of standards by the Attorney-General can be guaranteed. We have planned on the basis that either appropriate standards will be developed and adopted, or that the results of the work can be used instead, or first, through the other mechanisms provided under the legislation, such as guidelines, conditional exemptions, or Action Plan promotion.
Exploit the line of least resistance towards your objectives
One aspect of this has been that in standards development, the emphasis has been on improved accessibility of new premises, vehicles and facilities, and relying largely on cycles of replacement or alteration to achieve most of the transition to accessibility, rather than seeking to impose a drastically accelerated cycle of replacement or alteration.
Another point suggested by the same principle is that in each subject area we should use whichever mechanisms (as between guidelines, standards, action plan promotion, exemption based or other compliance promotion) give the best prospects of effectiveness relative to the effort required. As I have said, this is something we need to keep re-assessing, rather than assuming that we have got the balance right or that circumstances may not have changed. An example is that, despite extensive work put into it, the process of considering a possible standard under the DDA about accessibility of Federal Government communications and information has made virtually no significant progress in over two years. In co-operation with the Attorney-General's Department, we are looking to re-focus work in this area towards achieving outcomes in this area through executive decision rather than regulatory development. One option would be to have more specific commitments on information and communications accessibility built into the revision of the Commonwealth Disability Strategy. This could include adoption of the guidelines which the Commission has issued on accessibility of world wide web publishing, or development by the government of its own guidelines on this.
Selection of the internet and telecommunications as priority areas reflects the same principle of choosing the line of least resistance. These are areas of very fast technological change and upgrading or replacement of facilities. They are areas where the potential is expanding for equal access being reasonably readily achievable for people with a wide range of types of disability. At the same time, the issues are not so easy that they can be left entirely to the market or the course of technical progress. In the absence of clear direction on the necessity of ensuring disability access, many innovations in information and communications have produced additional barriers for equal access rather than removing them. Of course, priority for these areas also reflects the huge and growing importance of accessibility in these areas, in themselves and as a means of achieving equal participation in many areas of life, from employment to education to access to business and government information and services.
So this seems quite a good basis for selecting these areas for priority in policy activity: important, necessary, but not at all impossible.
I have not tried to discuss every area of the Australian Human Rights and Equal Opportunity Commission's efforts to promote the elimination of disability discrimination. Certainly I have not tried to present every aspect of our work as a model of success to be followed. I hope, though that I have said enough to show that our experience so far is worth referring to and our efforts in future worth watching.
1. U.N. Doc. E/CN.4/SR 232 (1951); cited in P.Alston, G.Quinn, “The Nature and Scope of States Parties Obligations under the International Covenant on Economic, Social and Cultural Rights” Human Rights Quarterly 9 (1987) 156
2. See Gerhardy v. Brown (1985) 159 CLR 70. See also the comment on this decision by W.Sadurski, " Gerhardy v. Brown v. The Concept of Discrimination: Reflections on the Landmark Case that Wasn't", (1986) 11 Sydney Law Review 5. Note that in Western Australia v The Commonwealth (1995) 183 CLR 373 the court acknowledged this comment and concluded (at par.144) that a law making racial distinctions was not necessarily racially discrimnatory.
4. For example, the EEOC's Technical Assistance Manual on the Employment Provisions (Title I) of the ADA - available at http://janweb.icdi.wvu.edu/kinder/pages/tam1.htm – and the Department of Justice Title II Technical Assistance Manual – available at http://janweb.icdi.wvu.edu/kinder/pages/tam2.htm .
5. 29 CFR Part 1630. These regulations are available at http://janweb.icdi.wvu.edu/kinder/pages/TitleIReg.htm .
6. The EEOC regulations state: “The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working” :1630.2(j)(i). They also state that in determining whether a person is “substantially limited” reference may be made to “The geographical area to which the individual has reasonable access” and “the job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment”: 1630.2.(j)(ii) .
7. A policeman with glaucoma but with 20/20 corrected vision was held substantially limited in the major life activity of seeing: Doane v City of Omaha, 8 th Cir.1997 ( http://laws.findlaw.com/8th/962835P.html ); but an engineer with asbestosis reducing lung function by 50% was held not substantially limited by his difficulty in climbing stairs on oil rigs: Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996).
8. 28 CFR 35; available at http://janweb.icdi.wvu.edu/kinder/pages/TitleIIReg.htm . See sections 35.105 on self evaluation and 35.150 on transition plans.
10. Australian Government Publishing Service. Available on line at http://www.health.gov.au/ood/cds.htm .
11. An overview of the second round of reports is available at http://www.health.gov.au/ood/cdsprog2.htm .
15. The draft standards,HREOC's advisory note, exemption decisions and South Australia 's Action Plan are available on the Commission's internet site, together with a recent paper by the Acting Disability Discrimination Commissioner updating developments. The draft Regulation Impact Statement is available at http://law.gov.au/publications/disability/Draft_report_public_transport/full_report.html
20. The report of this group is available at http://www.access-board.gov/pubs/taacrpt.htm .