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People with Disabilities and productive diversity in the Australian Public Service

Disability Disability Rights

People with Disabilities and productive diversity in the Australian Public Service

Dr Sev Ozdowski OAM
Acting Disability Discrimination Commissioner

Australian Public Service Commission one-day diversity conference
'Public Service Regeneration - Challenges and Opportunities for the Workforce'
Brisbane, Wednesday 8 June 2005.

Sev Ozdowski

Notes: check against delivery


Thank you for the opportunity to speak today.

Allow me to commence by acknowledging the traditional owners of the land on which we meet, and their elders past and present.

I believe this acknowledgment, which it is my custom to make wherever I go to speak in public, is not only a matter of good manners or correct form. It is an important reminder of one of the elements of our diversity as a nation.

Diversity, of course, is the theme of this conference. I welcome this recognition by the Public Service Commission of the importance of these issues.

With my colleague the Sex Discrimination Commissioner also being on the program, you have half of the members of the Human Rights and Equal Opportunity Commission coming here to talk with you. So I hope it is clear that the Human Rights Commission also recognises the importance of what the Australian Public Service does, or can do, about diversity, and about providing all Australians with an equal opportunity to serve our nation.

Without wanting to be too provocative for any colleagues here from DIMIA, I think recent media and parliamentary discussion of immigration issues shows that public administration in that area would have benefited from closer and earlier attention to human rights advice coming from HREOC among other places. Of course, all of us want to deal constructively with issues if we can instead of waiting until they become a political or media scandal or crisis.

I will come back later in my remarks to why I think it is well and truly timely to increase the level of attention to issues of effective inclusion for people with disabilities in the APS. At this point let me just say that disability and employment issues are higher on media and political agendas then I can ever recall and that this reflects a serious situation requiring serious responses.

Importance of the APS as a model employer

The APS does not have the number of employees it did when I joined it. But considered overall, the APS remains one of Australia 's largest employers. "Though much is taken, much abides", as Ulysses says in Tennyson's poem.

Government and community expectations of what employment should be, and expectations of the public service, have changed over time. I think it is true, though, that Australia's government and people still expect the APS to be a model employer, even if there have been changes in what a model employer is expected to be.

I don't mean the sort of model used by the economists, which represents what reality would look like - if only you took out all the details that reality is actually made of. I certainly don't mean the sort of model referred to in "Monty Python and the Holy Grail", where the knights exclaim excitedly at the sight of Camelot - but then are deflated by a voice saying "It's only a model".

What I mean, is a model which demonstrates practically how to make things work - and which employers, inside and outside government, can use.

In referring to government as a model on employment and disability issues, I mean the roles of government in setting a positive example in adopting inclusive approaches as a matter of principle, and in working through all the practical issues that arise in achieving real equality of opportunity, and making that experience available for other employers.

Disability and diversity in practice

I want to talk today about disability as a very practical aspect of diversity.

This may seem an odd or even a presumptuous thing for me to say to you.

After all, isn't it more your role than mine to deal with diversity in employment in practice? Shouldn't the Human Rights and Equal Opportunity Commission only have to deal with equality and diversity at a less practical, more abstract level of principles and legislation? To be frank, if we have to look to HREOC to tell us what to do on major matters of social and economic policy and public administration, don't we have a serious problem?

The answers to those questions, I think, are yes; yes; and, yes, we do have a serious problem in relation to employment outcomes and opportunities for people with disabilities in Australia .

In recognition of that problem, HREOC agreed to my proposal to conduct a national inquiry on disability and employment, which is due to report at the end of this year.

I am very glad to see some current initiatives from government addressing some of the subject matter of that inquiry. But a little later in my remarks today I want to suggest some areas of particular relevance to the Australian Public Service where I think HREOC's inquiry has already identified a need for action.

The Disability Discrimination Act and employment

It is true that HREOC's role concerning disability is defined by legislation - in particular the Disability Discrimination Act.

I am happy to take any questions you have about the DDA, and I will come back a bit later to some issues about possible reforms to this legislation.

HREOC's website information seeks to explain the law in simple and non-technical terms, as well as providing responses to complex and technical questions. Simple suggestions and complex questions are equally welcome to help us do better in presenting and promoting the law.

But I expect that you are already familiar with the basics about the DDA, and that, like me, you are more interested in how to implement equality and take advantage of diversity in practice than in discussion of discrimination law for its own sake.

For today's discussion, perhaps it is enough to emphasise that the DDA defines both discrimination and disability in very general terms.

The concept of discrimination includes both direct and indirect discrimination, subject in both cases to the important limitation that distinctions based on the inherent requirements of the job are not unlawful. The DDA encompasses, although it does not yet explicitly spell out, a requirement to make reasonable adjustments to remove features of the workplace which have discriminatory effects.

Including an express duty to make reasonable adjustments in the DDA, as the Government has decided to do in response to the Productivity Commission's review of the legislation, will provide helpful clarification but will not change the current legal effect of the DDA.

Disability is defined very broadly, to include physical, intellectual, sensory, or psychiatric disabilities; disabilities that are permanent, episodic or temporary.

Whether a person's disability is severe, moderate or apparently trivial, discrimination on the basis of that disability is covered by the DDA.

Large numbers of Australians have disabilities

With a broad definition of disability, it should be obvious that we are not talking about a small, abnormal, possibly dispensible minority.

Rather, we are looking at disability as part of the spectrum of normal human experience.

Well known Australian Bureau of Statistics figures tell us that around 20% of Australia 's people have some level of disability.

More fine-grained and more recent analysis indicates that the numbers are likely to be substantially larger - considering evidence that either of hearing impairment or mental health issues affect 20% of our population by themselves.

Another eight per cent of the community act as carers for family or friends with disabilities on daily basis. We also know that these numbers are growing and will grow further as our population ages.

Whether or not all of the 700,000 Australians currently depending on receiving Disability Support Pension payments should or should not be receiving this form of assistance is not for me to say.

But the number of working age Australians who can be defined as having a disability is pretty clearly far larger than this.

People with disabilities are part of your workforce now

What I am seeking to emphasise is that disability is not restricted to those members of the community who are currently outside or on the fringes of the workforce. It is also a normal part of the diversity of the existing workforce for ever employer, including in the APS.

And so, what I would ask every employer and manager to consider is that effective accommodation of disability has to be seen as part of the challenges of managing the workforce as it already is in practice - not some political, theoretical, legal, external, impractical agenda that can be put to the bottom of an all too full pile of priorities.

Employment outcomes for people with disabilities

Improving employment opportunity and outcomes for people with disabilities was a large part of the original motivation for introduction of the Disability Discrimination Act in 1992.

Let me be clear about this. Giving individual people rights to complain about employment discrimination was not meant to be an end in itself. It was meant to contribute to making a difference to employment outcomes overall for people with disabilities in Australia .

And yet, after more than 12 years of experience in implementation of the DDA, and more than two decades of similar legislation in State jurisdictions covering over half the Australian workforce - I mean, the 1980s anti-discrimination laws of NSW, Victoria, South Australia and Western Australia - the employment position for people with disabilities does not seem to have improved; if anything, it has got worse.

Statistics on the disability experience in Australia range between inadequate and non-existent.

Such as they are, though, the available statistics indicate that

  • the proportion of people with a disability of working age who are participating in the workforce remains very much lower than the proportion for the population overall; and
  • among those people with a disability who are in the workforce the unemployment rate remains very much higher than for the population overall.

Government recognises change is needed

The welfare reform measures proposed in the Government's 2005 Budget, then, are clearly in response to a real problem.

Whether they are the right response is a matter of current political debate and it is not something which I am best placed to judge.

The Government argues that welfare reform will help move people from welfare to work. Disability organisations and others have argued that many people will only be moved from welfare to lower levels of welfare.

But everyone engaged in the debate agrees that changes to the welfare system are at best part of a strategy to improve employment opportunities and outcomes for people with disabilities in Australia.

Employer organisations which have been strongly supportive of the direction of the Government's welfare reform agenda have been equally clear that employers need to do more to provide real opportunities for people with disabilities.

In the context of the Budget announcements the Commonwealth Government has convened an employer forum to advise on further measures to assist employers in increasing employment of people with disabilities.

This forum, convened by the Department of Employment and Workplace Relations but chaired by Mr Mark Bagshaw of IBM, is unambiguously a welcome initiative.

It follows from some earlier consultative processes, including the very important Review of Employer Incentive Schemes conducted by the Department of Family and Community Services, which reported in 2003.

Improved information and advice for employers

One of the recommendations of the Review of Employer Incentive Schemes, which has already been accepted by Government in the Budget announcements, is the establishment of an information and advisory service for employers on how to accommodate disabilities in the workplace, equivalent to the Job Accommodation Network and related technical assistance facilities which exist in the United States .

HREOC has been supporting such an initiative for some years.

For Commonwealth public service organisations I think such a service will offer both a more convenient and less time consuming source of information and advice, and a means for sharing expertise and experience that organisations have built up for themselves.

For smaller employers, easier access to information on solutions to disability adjustment and inclusion issues could make the difference in many cases between feeling able to employ a person with a disability and feeling it is all too hard.

HREOC's national inquiry on employment and disability

When I proposed a national inquiry on employment and disability last year, and when the Human Rights and Equal Opportunity Commission accepted my proposal, we did not of course know what measures the Government would be announcing. But perhaps the ideal way to run a public inquiry is to have at least one of your major recommendations accepted even before you write your report.

I am planning to issue an interim report in late July. Hopefully Government will also move to adopt the recommendations in that interim report before it is written, or at least before the final report is issued at the end of the year. I would like nothing better than to have nothing left for the Inquiry to recommend or take credit for.

More seriously, I see the Inquiry not as handing down tablets of stone full of human rights law, but as making worthwhile practical contributions to processes of policy development and public debate on disability employment which are already occurring and which offer great opportunities for improving the position of people with disabilities in Australian society.

In particular, I hope that by drawing out recommendations from more than 120 submissions we have received, our interim report may assist the Government's employer forum in preparing the action plan it is working on for further elements towards a national strategy on disability and employment.

I will mention just briefly here some of the possible recommendations that have emerged from submissions to the Inquiry so far. These point to several roles for government in improving the level of employment for people with disabilities:

•  Addressing risks for employers

•  Improving supports for employment and participation

•  Providing easier access to information

•  Providing examples and models of successful practice.

Improvements to the Workplace Modifications Scheme

Usage of the Workplace Modifications Scheme to date has been quite pathetically small. FACS submission to the Productivity Commission review of the DDA for example indicated that just 236 applications for funding were dealt with in 2002-03.

HREOC's Inquiry has heard a range of suggestions for turning this scheme into one which makes a more worthwhile contribution to employment outcomes for people with disabilities. These include:

•  measures to increase awareness

•  broadening eligibility, including removing the requirement that to be eligible a person must be receiving assistance from a Disability Open Employment Service

•  widening the range of modifications that the scheme will fund, for example to cover interpreters or support workers rather than only equipment

•  making equipment funded portable if a person changes jobs

•  increasing the amount available under the scheme - noting that funding caps in New Zealand and the UK are far more generous than here

•  simplifying the administration of the scheme to make it easier for employers to use.

The May 2005 Federal Budget announcement indicated both increased funding for this program, and a review of eligibility criteria. These initiatives are welcome but submissions to the Inquiry indicate there may be room for further review of the scheme.

One focus of review, and possibly for discussion here today, could be the availability and usefulness of this scheme to public sector agencies.

It could be argued of course that departments and agencies should be meeting costs of adjustment from their own budgets.

On the other hand, as bureaucrats ourselves perhaps there is more prospect that government departments would be able to deal with the application process than a small business and actually use the funds allocated to the scheme.

There is also the point that as recruitment and budgeting decisions have been devolved to very small unit level, people in government thinking about whether they have the budget for a particular adjustment may be thinking much more like a small business than like a large government employer, and so more ready access to identified funding for disability adjustments could have an important effect.

Work trials and addressing risks

Another major set of issues relate to probationary employment, work trials, and other means of addressing real or perceived risks in employing people with disabilities.

The 2003 review of Employer Incentives Schemes strongly supported the development of a more robust platform for work trials, with many employers saying they would be more willing to employ people with disabilities if they could "try before they buy", and with lack of practical experience being seen as a key barrier even for people with disabilities who have acquired substantial educational qualifications.

The same theme has been taken up in submissions to HREOC's inquiry, with suggestions that support for work trials needs to be enhanced through:

•  Clarification of employer responsibilities in industrial relations; occupational health and safety; workers' compensation; insurance; unfair dismissal; and discrimination legislation.

•  Provision of clear and easily accessible information to employers about these issues.

•  Investigation of the development of a national scheme of insurance coverage for work trials.

You would be aware of course of the Government's recently announced proposals for industrial relations reform, including extension of the probation period concept under unfair dismissal law to 6 months, exemption of smaller employers from unfair dismissal claims, and establishment of a national Safety and Compensation Council to review occupational health and safety and workers compensation arrangements.

I am very interested in discussing with government the details of these proposals as they relate to people with disabilities, and as they might relate to discrimination law as well as to unfair dismissal legislation.

We do not have a concluded view at HREOC on the proposed changes regarding unfair dismissal. But I do not expect it would surprise anyone if HREOC were to have some concerns about people being left with fewer remedies for discriminatory dismissal.

I note that Ministers have said that there will continue to be remedies for unlawfully discriminatory dismissal.

This however may be argued to present possible concerns the other way, at least in relation to disability - whether remedies remain available under unfair dismissal laws, or only through discrimination laws.

If employers are able to apply a probation period of six months for all employees - on the model already provided by APS employment - but in effect are not able to do this if the reason for terminating probationary employment relates to disability, there could be argued to be a clearer disincentive than might exist now for employing people with disabilities, relative to other candidates.

As I understand the Government's proposals, the six month probation period under unfair dismissal law will apply to disability related termination of employment, but the small to medium business exemption will not. I will be seeking further clarification of this, however, and what implications the Government sees for related provisions of disability discrimination law.

Getting the balance right on these issues will require careful consideration and consultation, which I hope our Inquiry can contribute to.

Government procurement policy

Another set of issues raised with our Inquiry concern accessibility in government procurement policy. In a room full of public servants, I am sure you all find this topic just as fascinating as I do.

But seriously, submissions have reminded us of important issues in this area.

As you know, it can be more difficult, and involve delay and expense, to make adjustments in work premises, facilities and equipment after the event, when an existing employee acquires a disability or a jobseeker presents a request for an adjustment.

So as far as possible it is preferable if premises, equipment and facilities are designed to meet "universal design" principles, to accommodate the widest possible range of human needs.

This can involve designing systems and facilities to be directly accessible to or useable by people with disabilities; or to be readily adaptable to provide accessibility when needed; or to be compatible with widely used adaptive devices or equipment used by people with disabilities.

Particular importance of information and communications technology

Submissions have particularly stressed the importance of this issue in relation to information and communications technology. More and more of course these technologies are central to how we do our work as public servants.

Technologies change rapidly, which offers great possibilities for expanding access and useability for people with disabilities. But rapid change in information and communications frequently also carries dangers of people with disabilities being left behind; with adjustments and adaptations having to be worked out and made all over again for each new system.

In our own agency and even with the excellent I.T. staff we have, we have struggled with practical examples of this

•  how to make TTY phones for deaf or speech impaired phones work with our new Internet based phone system?

•  How to ensure that screen reader and voice output software for vision impaired staff works with systems for remote access to computer network?

These are issues which might defeat many a small employer and on which leadership and information on a whole of government basis might well improve things substantially.

Roles for government

A number of roles for government and for the Commonwealth in particular have been recommended to us:

•  Education and best practice guidelines to encourage organisations to design accessibility into their IT systems at the time of design.

•  A national education campaign informing organisations of the need to adhere to accessibility design guidelines.

•  Leading by example, by only implement IT systems within government which are accessible. Government could demonstrate leadership in this regard by introducing legislation which requires Government Departments, statutory bodies and Government enterprises to comply with procurement policy which requires all office equipment and software to be accessible.

While it would be appropriate for the Commonwealth government to show leadership in this area, there is no reason why other levels of government should not also adopt accessible procurement policies.

Larger private sector organisations could also show leadership in this area, either in co-operation with government or on their own initiative, on the sort of model offered perhaps by the banking sector in its development of voluntary accessibility standards for ATMs and other areas of service provision.

To be effective in practice, accessible procurement requirements need to be backed by information on what accessibility means and how it can be implemented.

The Australian Government Information Office (AGIMO) issued in March 2005 a Better Practice Checklist on assistive technology. This is an important development although it is restricted to information and communications technology and is not backed by specific mandatory legislative or policy requirements and as far as I am aware has not been extensively promoted within Government or more generally.

A number of overseas governments including the United States and Canada seem to have gone further in this area both in regulatory and policy requirements and in provision of information resources.

The Inquiry does not yet have a firm view, and will seek discussion, on whether accessible procurement should be mandated by legislation or regulation in Australia, or whether its adoption in government policy and standard contracts would be sufficient.

But it does seem clear that there is a real need for leadership in this area.

Accessible premises

Besides information and communications technology, other areas that have been discussed with the Inquiry include work premises and materials and premises used by external training providers.

Very long running processes to upgrade the access provisions of the Building Code of Australia, and adopt these as a standard under the DDA, will I hope be finally concluded this year and provide everyone with clearer benchmarks of what accessible premises should look like.

There are still decisions to be made on some issues that have not been able to be resolved by consensus among government, industry and community representatives. In particular there is the issue of physical access to small 2 and 3 storey buildings.

Issues of expense to industry are real and need to be taken seriously. On the other hand, of course, in suburban and regional Australia these buildings constitute most of the building stock, where people are employed and services are provided.

The stakes are high, since the point of standards is that they are not just guidelines. They will define conclusively what access people are and are not entitled to expect.

But I remain confident that the standards will move access forward from where we are now.

Even if the standards do provide that small 2 and 3 storey buildings in general need not be accessible, there are likely to be separate provisions for some situations where an exemption is less justified. One obvious area of this kind would be premises used for administration of Commonwealth government programs.

It was interesting to see last week representatives of the Department of Employment and Workplace Relations being questioned very strongly about the accessibility of premises of Job Network providers. Just relying on a general requirement to comply with the DDA was not seen as sufficient without more specific contract compliance measures.

In my view also, there does need to be more consideration thoughout the APS of requirements in contracts to ensure that accessibility is delivered and that government provides real leadership in inclusive employment and service delivery.

APS employment: a need for leadership

I want to come now to the more general issue of leadership by the Commonwealth Government on disability employment issues.

Let me remind you of some remarks made in the State of the Service Report for 2002-03:

"Overall, the picture is not positive. Despite the strategies agencies report having in place, the representation of people with a disability is continuing to decline. Significant numbers of employees with a disability disagree their agency is providing support and they are more dissatisfied in their jobs. Further analysis is needed in this area to identify possible causes. Agencies also need to consider more carefully, including in consultation with their employees with a disability, the effectiveness of their strategies."

"The agency survey results indicate that some agencies clearly have a long way to go in the development and implementation of strategies to recruit and retain employees with a disability. The results of the employee survey add weight to the urgency of the issue, with employees with a disability emerging as a relatively dissatisfied group of employees..."

In 2003-2004, people with disabilities were reported as making up 3.8 per cent of ongoing Australian Public Service employees, down from 5.8 per cent ten years ago.

I am aware of the limits of statistics in this area, including issues about self-reporting and definitions.

But when the statistics keep pointing the wrong way I think we have to take them seriously at least as an indicator.

So, given the importance of this role of government in providing a model and an example, I have to say again how concerned I am by evidence that employment of people with disabilities as a proportion of the Commonwealth Public Service is still continuing to fall.

This is occurring not only overall - which might be explained by reduced numbers of entry level positions - but at all levels.

We might I think have expected and hoped that improved representation, particularly at more senior levels would be flowing from

  • reasonable adjustment and non-discrimination policies now in place for many years;
  • developments in technology which should have made it easier to remove many disability related barriers for people with sensory or physical disabilities in particular; and
  • advancing educational opportunities for people with disabilities in recent years.

Some of the measures announced by government in the Budget may be expected to assist the APS along with other employers - including improved advisory and information services. But I think it is clear that departments and agencies themselves also need to be developing and really committing themselves to effective strategies to deal more positively with disability as an element of a diverse Australian workforce.

You may have seen press coverage last week highlighting the ACT government's Public Service Employment Framework for People with a Disability, with the Chief Minister stating a goal of seeing 50% of graduate recruitment positions in the next year filled by people with disabilities.

I will not run through all the details of the A.C.T. strategy here. Two features I noticed though were the planned development of a toolkit for the use of ACT agencies to facilitate the employment of people with disabilities, and the convening of a Disability Steering Group chaired by the Commissioner for Public Administration and including senior representatives from key Government agencies and the community;

One other striking statement was that the ACT Commissioner for Public Administration has visited the heads of all major ACT public service agencies to discuss current performance in the recruitment and employment of people with disabilities and future service wide performance monitoring and reporting.

I realise that it is rather easier to visit every ACT public service agency than to perform the equivalent feat within the Commonwealth. Another line from "Ulysses", which I quoted from at the start of my remarks, has an all too familiar ring as a Commonwealth statutory officer myself: "I cannot rest from travel".

In going around Australia recently, it seems to me that there are some good examples emerging around Australia of public sector leadership. As well as the ACT strategy, Western Australia and South Australia have made disability a major and specific focus of their efforts on diversity in the public sector workforce and launched significant strategies.


With government making a major Budget focus of increasing employment participation by people with disabilities, it seems to me inescapably clear that government, parliament and community alike will increasingly be calling on the Australian Public Service to provide a model of leading by example in accommodating disability as part of productive diversity.

Diversity policy has begun to refer to the need to recognise that workers with family responsibilities should not be viewed as a burden to be tolerated - they often have had no choice but to develop valuable time management and problem solving skills just to get through the demands of the weekly schedule. I think the same is true for many people with disabilities.

There is plenty of evidence that not just equipment but also systems designed with people with disabilities in mind can have benefits in accommodating diverse human capacities and needs more generally. For example the same flexibility in where and when work is performed may assist

  • a person with a physical or psychiatric disability,
  • a person with family or carer responsibilities or
  • an older worker seeking to remain in or re-enter the workforce.

Giving more attention to disability as a matter of diversity policy may make it easier to think about accommodating disability in employment not as something extraordinary or costly, or to be done out of charity or soft centred social justice or - worst of all! - human rights thinking, but as a rational economic necessity of making the fullest use of the skills and abilities available in our and society.

I urge you to consider most earnestly and energetically how to expand your efforts to employ productively our diverse workforce in the service of our diverse nation. I wish you success in this effort and in the remainder of this conference.