PROMOTING THE RIGHTS OF PEOPLE
WITH DISABILITIES: TOWARDS A NEW UN CONVENTION
An International Workshop for National Human Rights
Institutions from the Commonwealth and Asia-Pacific Region
New Delhi, India
26-29 May 2003
Dr Sev Ozdowski OAM
Human Rights Commissioner and Acting Disability Discrimination Commissioner
- Session 2: Role for National Human Rights Institutions
in Promoting the Rights of people With Disabilities
Session 1: Presentation of Country
papers: Impact of National Legislation and Administrative Practice
Tuesday 27 May 2003
Dr Sev Ozdowski OAM
Human Rights Commissioner and Disability Discrimination Commissioner
Human Rights & Equal Opportunity Commission, Sydney, Australia
This presentation gives an overview of experience in advancing human
rights of people with disabilities in Australia through discrimination
law, and the relationship of that experience to action through the international
human rights system.
Overall we can say that since the Disability Discrimination Act was introduced
there has been significant progress on some issues, in particular in physical
and communications access in the areas of public transport, buildings
and telecommunications. Some areas of discrimination, in particular employment,
have seen less progress.
Also, what we have in Australia in the Disability Discrimination Act is
a discrimination law not a more general law on human rights and disability.
The law is limited to dealing with discrimination rather than creating
positive entitlements to necessary services and support, and only applies
in specified areas.
There are a range of other laws and programs alongside the Disability
Discrimination Act which deal with some of these other issues, but we
would expect the development of an international convention on human rights
and disability to give a clearer framework for accountability on this
wider range of human rights issues.
International action and domestic legislation on disability rights
People with disabilities are, of course, an inherent part of the Australian
community, even if this has not always been recognised.
The most recent census statistics indicate around 18 per cent of the
population has a disability. This proportion is likely to increase with
the ageing of the Australian population, since we are more likely to have
a disability as we get older.
As in many other countries, the 1981 International Year for people with
disabilities provided a focus for disability community activism and government
1981 also saw the passage of the federal Human Rights Commission Act.
The new Commission's jurisdiction was defined by reference to a number
of international instruments - including the Declaration on the Rights
of Disabled Persons and the Declaration on the Rights of Mentally Retarded
This Act, and the Human Rights and Equal Opportunity Commission Act which
followed in 1986, incorporated the rights listed in these Declarations
into law - but only very indirectly and incompletely. The legislation
did not create any enforceable rights or duties - only a power for the
Commission to investigate complaints, seek to resolve them by conciliation,
and report to Parliament on matters that could not be resolved.
Some of the content of international declarations on disability was given
more definite legal form in the Disability Services Acts which were passed
later in the 1980s.
These Acts set standards for how specific services for people with disabilities
should operate - including provisions for dealing with complaints of abuse
and for participation in how services operate.
As you would expect in a developed country which has a well developed
welfare state, there are in fact a range of disability services in place,
provided through government and through NGOs. These include:
- employment services, including sheltered workshops but also some support
for participation in open employment;
- accommodation services, still including some institutional style accommodation
but also a range of other supported accommodation options;
- income support through the social security system;
- some provision of disability equipment and adaptive technology .
However, there is considerable evidence of continuing unmet need in Australia
for disability services, support and assistance - in areas including personal
assistance and care, respite support for family carers, accommodation,
interpreting services, education aides, access to assistive technology,
and support in meeting additional costs presented by disability in participating
in employment, education and other areas of life.
In Australia there remains no general enforceable right as a matter of
human rights law for people to receive the support, assistance and other
services they require.
Towards national discrimination legislation
As shown by what I have said so far, many of the most pressing human
rights and disability issues go well beyond the scope of discrimination
But in the decade following the International Year, national legislation
on disability discrimination was identified in Australia as a priority
by NGO networks, by official disability advisory bodies and by the human
rights commission itself.
The federal parliament lacks specific power to legislate regarding human
rights, disability or discrimination. But it does have power over external
affairs, which includes legislating to implement treaties and on matters
of international concern.
In the development of the DDA, HREOC and others argued successfully that
the general non discrimination provisions of the human rights Covenants,
together with other evidence of international concern on human rights
and disability, meant that the Australian parliament had power to pass
broad ranging legislation on disability discrimination.
But even though existing human rights treaties - which in most cases
fail to acknowledge disability expressly - can be stretched to cover most
disability issues, they do not provide much specific guidance or accountability
for achieving human rights for people with disabilities in practice.
Human rights issues beyond discrimination law
By the time that Australia's DDA was being developed, Standard Rules
on the Equalization of Opportunities for Persons with Disabilities were
progressing through the United Nations system, and these were adopted
by the General Assembly late in 1993.
The Standard Rules are potentially a very valuable document. However,
in Australia at least their profile in government or public discussion
has been very limited.
They have, however, provided guidance to HREOC in targeting areas for
priority effort in administering the DDA, which does provide for enforceable
legal rights and obligations in at least some of the areas covered by
the Standard Rules.
We have done some important work outside of the scope of the DDA - notably
on sterilisation issues. But in general we have focussed on disability
discrimination first and foremost.
While the discrimination acts provide for eventual access to legal rights,
outside the areas covered by these specific laws HREOC lacks enforceable
remedies and is limited to political and publicity approaches - inquiries,
reports, submissions, press conferences and so on.
These approaches can also be made to be very effective, as shown in particular
by HREOC's national inquiry on human rights and mental illness in the
early 1990s. But effectiveness this way is less certain, and takes a far
greater investment of effort and resources, than if there is a legal remedy
available to bring relevant parties to the table.
A major part of the purpose of the passage of the DDA as we saw it was
to provide people with disabilities with enforceable rights to deal with
discrimination, assisted by a national human rights commission, rather
than that commission being only able to issue reports which might or might
not ever be implemented.
Overview of the Disability Discrimination Act
Australia's Disability Discrimination Act was passed in 1992 and entered
into force in March 1993.
The DDA prohibits discrimination on the basis of disability in a range
of areas of life, including
- access to premises; and
- provision of goods and services - including public transport, insurance
and banking, telecommunications, government services, retailing and
It provides for complaints by or on behalf of people affected by unlawful
discrimination, as well as for a public education role for the national
human rights commission and a range of other mechanisms.
Disability is defined broadly by the legislation to include physical,
intellectual, sensory, and psychiatric disabilities, as well as people
who are discriminated against because they have or are thought to have
diseases such as AIDS or SARS. Families, cares and other associates of
people with disabilities are also protected against discrimination.
As well as direct discrimination the DDA also covers indirect discrimination,
where the same treatment for everyone results in discrimination against
people with disabilities. For example a building with entry only by steps
is the same for everyone but obviously discriminates in effect against
people who use wheelchairs or cannot climb steps for other reasons.
There are several important exceptions under the legislation intended
to balance the rights of people with disabilities and the rights of other
members of the community. In particular, in most areas adjustments to
accommodate a person's disability are not required if this would impose
unjustifiable hardship on other persons. There is also an exception regarding
infectious diseases for measures reasonably necessary to protect public
Achievements using Australia's Disability Discrimination Act
The record of achievements using the DDA is encouraging, but patchy and
incomplete. There are some issues where we know that large scale progress
has been made. There are some issues where it is harder to know what the
impact of the DDA has been and what progress is being made. There are
some issues where we know that nowhere like enough has happened.
It is also clear that we have done better at identifying and implementing
broad strategic approaches on access issues - both physical and communications
access - than on other forms of discrimination.
Access to public transport has been a striking area of success under
the Disability Discrimination Act, with strategic use of the complaints
provisions linked with each of the other mechanisms which the Act provides.
From a small handful of initial complaints, HREOC and disability community
representatives were able to negotiate agreement by all Transport Ministers
to a strategy including accessibility of all new public transport facilities
and services throughout Australia, and accessibility of existing services
and facilities within 20 years (with a small number of exceptions).
Standards for accessibility entered force during 2002. Many public transport
operators have been applying the draft Standards in effect for several
Most public sector bus fleets, for example, were close to achieving the
first five year target in the standards even before the Standards actually
commenced. Urban rail services, while not perfect, will similarly be well
ahead of the Standards targets so long as the current pace of improvement
The provision of specifications for what accessibility means and a timetable
for achieving it have been critical in this respect and in moving from
individualised disputes over particular stations etc to a system wide
On issues where it has not been possible to agree on standards, the general
non-discrimination provisions of the DDA continue to apply.
Access to premises
Access in the built environment is another important area of achievement,
but where much more also remains to be done.
There have now been hundreds of disability discrimination complaints
in Australia which have been resolved with an agreement to modify premises
to make them accessible.
However, to make a significant impact on access and opportunity, the
numbers of buildings made accessible need to be not in the dozens or even
hundreds each year, but in the hundreds of thousands.
So the greatest impact of disability discrimination complaints about
access to premises has been in alerting mainstream building regulators
- local governments and the Australian Building Codes Board - to their
One important case involved a new Convention Centre for Brisbane. Providing
disability access only around the side, with a longer route and out in
the rain, instead of through the main public entrance, was permitted by
the building code at the time but was found discriminatory under the State
equivalent of the DDA.
Another important case, this time under the DDA, was when the local council
in Coffs Harbour was found liable for permitting a cinema redevelopment
without provision of disability access.
The ability to negotiate standards has been crucial in engaging idsustry
and other government bodies in upgrading the access provisions of the
building code - since in return we can offer the prospect of endorsement
of that code as a standard for discrimination law purposes, so that the
building industry and local government are protected from discrimination
This has been a very long running process but a draft standard under
the Disability Discrimination Act should be available for consultation
later this year. At that point, we hope that accessibility in new or redeveloped
buildings will finally become a matter of routine (other than in the most
Access to telecommunications services and equipment is obviously increasingly
critical for access to employment, education, and social participation.
In the United States in particular, work involving industry, the disability
community and government has shown that it is possible to develop standards
to define how telecommunications should be accessible to people whether
or not they have a disability in hearing, speech, vision, or physical
or other disabilities that affect ability to use telecommunications services.
A major priority for HREOC in this area has been to ensure that Australian
consumers benefit from progress overseas - rather than in effect being
"dumped" with inferior products or services.
Surprisingly limited use has been made of the legislation by the organised
disability community in Australia in relation to telecommunications issues.
Despite this, the Disability Discrimination Act has had a major impact
on telecommunications services in Australia. An individual complaint by
a deaf man who needed a telephone typewriter (TTY) rather than a standard
handset led not only to a settlement for TTYs to be provided to deaf or
speech impaired people on the same terms as standard handsets for other
consumers, but also to incorporation of disability access requirements
into the Telecommunications Act definition of the standard telephone service
This is still only a part of the full picture of equal access to telecommunications
- since the standard telephone service and associated obligations do not
cover mobiles for example or other newer equipment and services. Discussions
are continuing between HREOC, industry, consumers and telecommunications
regulators on improvement of accessibility across the full range of telecommunications
What has been achieved through the Disability Discrimination Act is probably
more disputed in the education area than any other.
My view is that conciliation of individual complaints through HREOC is
achieving better outcomes and faster than is generally realised, and we
need to think of how to make positive outcomes better known.
Many more children with disabilities are now included in mainstream schools
than was the case ten or twenty years ago.
However there are still important problems to be addressed in ensuring
that people with disabilities have truly equal access and opportunity
in education. These include issues of sufficient access to sign language
interpreters or other assistants, access to materials in appropriate formats,
and how to accommodate students whose disability affects their behaviour.
Draft standards on education under the Disability Discrimination Act
are currently being considered. These may assist in achieving change to
more effectively inclusive education systems, although (as in the employment
area) these standards are better at defining principles than precise outcomes.
Access to employment opportunities is clearly a very important part of
access to economic and social participation and opportunity.
National disability discrimination legislation for Australia was conceived
largely as part of a strategy to improve employment participation for
people with disabilities. There is not much evidence, however, that this
strategy has succeeded.
More complaints are received on employment issues than any other area
under the DDA. A high proportion of these complaints have been resolved
by conciliation. But very obviously we cannot hope to achieve equal opportunity
for millions of Australians with disabilities one complaint at a time.
Rates of unemployment, and underemployment, among people with disabilities
remain much higher than for people without a disability.
Broader means for change are clearly needed.
Some progress in future employment outcomes may be expected from progress
in other related areas, such as accessible premises and public transport.
More accessible information and communications technology may also have
a crucial role to play in removing employment barriers particularly for
people with physical or sensory disabilities. But technology is unlikely
to provide the whole answer.
We need frank discussion of barriers, difficulties and needs as well
as areas of success and best practice in employment policy and practice.
Reflections on experience in this area from other countries represented
here would be very welcome.
Other areas of achievement
We have made good progress in moving towards equal access in some other
areas of service provision, including banking services .
However, it is necessary to acknowledge that we have been able to achieve
less for some sections of the disability community so far than for others
using the DDA.
In particular, people with intellectual or psychiatric disabilities have
not had the same clear benefits as people with physical or sensory disabilities.
Some of this relates to difficulties for those groups in making effective
use of complaint processes.
But in our own policy work broad gains have also been more readily achieved
in areas of physical and communications accessibility rather than in more
subtle or diffuse forms of discrimination.
Issues which present ongoing and major challenges for human rights of
people with disabilities in Australia include:
- equality in the legal system;
- access to effective mental health care and stigmatisation and discrimination
against people with a psychiatric disability;
- the rights of people living in institutional environments;
- access to appropriate accommodation; and
- inadequate levels of support services for people with disabilities
and their families.
Development of an international convention on human rights and disability
may assist us in Australia in achieving greater accountability for and
public and political focus on these issues.
Session 2: Role for National
Human Rights Institutions in Promoting the Rights of people With Disabilities
Tuesday 27 May 2003
I have been asked to contribute some remarks on the role of national
human rights institutions in promoting the rights of people with disabilities.
In presenting this account of the Australian experience I am not suggesting
that it is a model, or the only model, to be followed in all respects.
In my remarks in the first session for this meeting I referred to some
serious limitations in what we have been able to achieve: in the discrimination
area with reference to employment issues in particular, and in addressing
human rights issues beyond the reach of the model of discrimination law
I do think though that the Australian experience offers some useful lessons
in a positive sense as well as indicating areas where a different approach
may be merited.
Mechanisms for eliminating discrimination
When the Disability Discrimination Act was being developed it was recognized
that. of course, simply passing a law to prohibit discrimination would
not be sufficient to ensure that discrimination was eliminated or reduced.
The legislation provided for a range of implementation mechanisms:
- investigation and attempted conciliation of complaints of unlawful
discrimination, and reference of complaints to the courts where resolution
by conciliation cannot be achieved;
- provision for the Human Rights and Equal Opportunity Commission to
deal with a matter on its own initiative as if a complaint had been
- a role for the Commission to intervene as a party in court proceedings
raising disability discrimination issues (and, more recently, for the
Disability Discrimination Commissioner to seek leave to appear as an
amicus curiae, or friend of the court, without taking sides as a party
in a case);
- development of standards on what is required for non-discriminatory
access, and to set timetables for achieving it, including in employment,
accommodation, education, public transport services and access to premises;
- granting by the Human Rights and Equal Opportunity Commission of temporary
exemptions from the legislation, to manage the transition from inaccessible
to accessible systems and facilities;
- voluntary development of action plans by service providers to achieve
the objects of the legislation;
- conducting inquiries, including when requested by the Attorney-General;
- promotion of awareness of and compliance with the legislation by
the Human Rights and Equal Opportunity Commission, including publishing
guidelines for avoiding discrimination.
There have been over 5500 complaints lodged under the DDA.
Compared to other legal processes, there are very few formal requirements
for discrimination complaints. Complaints do need to be put in writing
but people who have difficulty with this can ask Commission staff to assist.
Complaints can now also be made by email.
In some circumstances the Commission can also assist complainants to
find other supports they might need, like an interpreter or advocate.
A network of disability discrimination legal services was funded by the
federal Attorney-General's Department from the outset of the legislation
and there are also specific legal services focused on mental illness,
HIV/AIDS and intellectual disability.
Intervention and amicus role
The Commission may intervene in (become a party to) court proceedings
that involve disability discrimination issues, where it considers it appropriate
to do so and where the court hearing the proceedings gives leave.
The amicus curiae function means a 'friend of the court'. It does not
involve the Commission appearing as an advocate for parties to complaints.
The role does, however, allow the Commissioner to present views on the
interpretation of the DDA and how it should apply in particular situations.
This includes putting information before the court which the Commission
has gathered through public inquiry processes or through other processes
of consultation with the disability community and other experts.
So far, opportunities to appear as amicus or intervene in court proceedings
under the DDA have been limited. In several cases where I had indicated
an interest in joining the proceedings the matter has settled before going
to hearing. However I think this function could become a significant one
The DDA permits "disability standards" to be made by the Attorney-General
in specified areas, presently accommodation, administration of Commonwealth
laws and programs, education, employment and public transport. When the
Act was being developed it was recognised that general anti-discrimination
provisions alone would not be sufficient to achieve equality in many areas.
Building accessible buildings or transport systems, for example, involves
decisions on many detailed design issues. People responsible for these
facilities will be more ready to invest effort and money in making changes
if the law gives them some certainty about what is needed and some security
while they implement the changes required.
In other areas such as employment and education, it is more difficult
to set detailed specifications on every issue that could arise, but standards
could still perform valuable functions by setting out in more detail the
principles or processes to be applied in achieving equal opportunity.
The process of developing disability standards involves negotiation and
consultation with groups that have an interest in the area. Concern has
been expressed about the resources of the disability community to negotiate
on an equal footing. While acknowledging those concerns the Commission
supports the adoption of disability standards as offering potential for
consistent change across Australia. In particular, the process of developing
standards was essential to the progress we have seen I public transport
Temporary exemptions and action plans
There is also a power for Australia' s national human rights commission
to grant temporary exemptions from the DDA for up to five years. This
power can be used as a tool to promote equality where organisations are
seeking some protection from complaints while acting to overcome barriers
to access. The Commission has not been prepared to grant an exemption
to organisations who simply want to avoid doing anything to comply with
The number of exemption applications to date has been quite small, except
in the public transport area, where exemptions have been a critical part
of the progress that has been achieved.
The DDA states that service providers may lodge voluntary Disability
Action Plans with the Commission. Having an Action Plan does not give
a complete defence against complaints but it can be taken into account
in dealing with a complaint.
The Commission believes that developing an Action Plan is a good way
for organisations to plan and prioritise their movement towards compliance
with the legislation.
There has been particularly strong take-up of Action Plans from local
government and from universities. It has been clear that staff within
these organisations have welcomed the opportunity that the development
of an Action Plan gives to make significant changes.
In the public transport area, several exemptions have been granted on
the condition that actions set out in an Action Plan should be implemented.
Where service providers are able to identify meaningful and measurable
targets for moving towards non discriminatory service, there appears to
be considerable further potential for this type of approach.
The first edition of the federal government's Commonwealth Disability
Strategy included a policy requirement for Commonwealth agencies and departments
to develop action plans under the DDA. While there was not complete compliance
with this policy, the number of Commonwealth agencies and departments
which do have Action Plans is relatively high.
It has also been encouraging that State and Territory departments have
been prepared to lodge action plans under Federal legislation. NSW and
Western Australian government agencies are required to produce disability
plans under their own Disability Services Acts and some of these agencies
have provided these plans to the Commission under the DDA.
In 2000 South Australia also adopted a whole of government disability
strategy which provides for preparation of action plans under the DDA
by government agencies.
While the number of plans from major businesses remains small, the Commission
has been very pleased to receive plans from major banks, telecommunications
providers and transport operators.
The Commission does not have the resources to perform any detailed evaluation
of the effectiveness or quality of Action Plans received, except where
an action plan has been part of the conditions on a temporary exemption.
The principal accountability mechanism for Action Plans have been to make
them available for public scrutiny (through the internet wherever possible)
and to encourage service providers to include public participation in
development of Action Plans and in their own reviews of implementation.
Promotion of awareness and compliance
In the first year of the DDA a substantial part of the Commission's work
and budget was dedicated to a community information and education campaign.
This was aimed at people with a disability and at organisations with responsibilities
under the legislation. This campaign was carefully planned to make effective
use of a limited budget. Much more impact, however, has been seen from
some high profile complaint outcomes, such as Scott v Telstra in relation
to telecommunications, Finney v The Hills Grammar School regarding education,
and Maguire v SOCOG regarding information accessibility.
The Commission has produced advisory notes or guidelines in a number
of areas covered by the DDA: access to premises, insurance, public transport,
and world wide web access.
The development of the World Wide Web has greatly increased the Commission's
ability to publish information and advice. This has included "frequently
asked questions" material, the text of speeches, Commission and court
decisions, and links to other sources of information and advice. These
materials are also made available in print or other formats on request.
Over 50,000 page views per month are now registered for the disability
rights section of the Commission's web site.
We also promote awareness and compliance through participation in many
formal and informal educational events, conferences, public forums, workshops
In addition, there is significant community education and awareness activity
on rights and responsibilities undertaken by disability community groups,
State and Territory anti-discrimination bodies, industry and government
organisations and in particular through the network of Disability Discrimination
One of the major means for promoting awareness and compliance with the
DDA has been the conduct of public inquiries. These have been conducted
at the Commission's own initiative; in response to selected complaints
raising systemic issues; on exemption applications; and at the request
of the Attorney General.
Conduct of public inquiries on discrimination and human rights issues,
and publicity for complaint outcomes, have been the major strategies adopted
to seek to affect public awareness and attitudes on disability issues.
An initial public awareness campaign when the legislation was introduced
had only limited results.
In the Australian context at least, information, education or advertising
campaigns directed at changing attitudes have, and always have had, 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, education, employment and services (if they
are thought of at all) seem far more likely to change under the impact
of experience of people with a disability as equal participants in ordinary
and mainstream activities: as work colleagues; as classmates in school
or university or college; as customers and so on. Our principal focus
has therefore been on the institutions and structures that perpetuate
exclusion and marginalisation, with attitudes seen as secondary to this.
The public inquiry process does not guarantee a successful outcome, but
it can have several benefits. It enables broad community participation
in discussion of important policy issues, including participation by disability
NGOs. It may enhance the prospects for agreed resolution of issues (including
issues which have been or could be the subject of complaints) by gathering
a wider range of information, perspectives and options. It may also secure
publicity both for discrimination issues and for positive outcomes.
Public inquiries under the DDA have been conducted with modest resources,
using the internet as far as possible to gather and publish submissions,
and supplementing this with face to face hearings where required to gain
more information or pursue resolution of issues.
A major public inquiry on the human rights of people with a mental illness
was commenced in 1990 and reported in 1993.
We have also conducted a public inquiry on accessibility of electronic
commerce and new service and information technologies to people with disabilities
and older people.
Other public inquiries have been conducted into selected complaints presenting
broad systemic issues: in particular, inquiries into cinema captioning
and television captioning for deaf and hearing impaired people; accessibility
of mobile phones to people with hearing impairments; accessibility of
electoral processes; and accessibility of railway stations to people using
[Further details of some of these inquiries are set out below.]
Several complaints regarding captioning for deaf and hearing impaired
people have been dealt with by open inquiry processes including publicly
calling for submissions or convening a public forum involving industry
and people with disabilities. An inquiry of this type on cinema captioning
has led to a national program of captioning first release films. An inquiry
on free to air television captioning contributed to regulatory requirements
being set for captioning of all news, current affairs and prime time broadcasts,
and further increases are being discussed in a forum convened by HREOC.
A similar inquiry on captioning of pay television is at an earlier stage
but appears promising.
Mobile phones and hearing aids
Interference from some digital mobile phones can be so severe that some
people who use hearing aids are unable to use these phones. In September
1999 the Commission announced a public inquiry into the issue, prompted
by a representative complaint under the DDA on behalf of people who use
hearing aids or cochlear implants. This inquiry was successfully concluded
in April 2001 with the announcement by Telstra, Optus and Vodafone of
schemes to provide remedies.
In 1999-2000 at the request of the Attorney-General the Commission conducted
a public inquiry on accessibility of electronic commerce and other new
service and information technologies for people with disabilities and
older people. Following the inquiry the Commission has been assisting
government and industry bodies to develop initiatives in this area, including
through an Accessible Ecommerce Forum sponsored by the Commission and
the Australian Bankers' Association.
A major outcome has been agreement by the Australian Bankers' Association
to develop a series of industry accessibility standards, on internet banking,
phone banking, EFTPOS facilities and automatic teller machines. These
standards, developed in consultation with community representatives, were
launched in April 2002. Individual banks have now begun to release plans
for implementation of these standards.
Limitations and lessons
We do not have a comprehensive, objective stocktake available on progress
towards equality and accessibility for people with disabilities since
the passing of the Disability Discrimination Act. There is enough evidence
to show, though, that there have been some substantial achievements. However,
experience has also highlighted some of the limitations of the legislation.
Lack of specific requirements for standard setting
Setting of detailed standards on accessibility has been identified as
a key requirement in the disability area. So it is a serious concern,
that almost ten years since the Disability Discrimination Act was passed
no standards are yet in force.
In the United States, under the Americans with Disabilities Act and related
provisions of other laws, regulations had to be made by particular dates.
In Australia, without the backing of a definite legislative timetable,
progress towards standard setting has had to be achieved by slow negotiations
(and to some extent by the threat of complaints).
Lack of comprehensive provision for standards
Setting of standards is only provided for in some of the areas covered
by the legislation. No good reason is apparent for this limitation.
Some progress has been made in areas such as telecommunications, television
captioning and banking accessibility, through voluntary development of
industry codes or through setting of standards by other regulators. But
an explicit provision under the DDA for standards in these areas - or
some other means for certifying these other codes as sufficient for DDA
compliance - could have assisted in achieving broader and faster progress.
Limits of compliance and reporting functions
The legislation provides for organisations to submit voluntary action
plans to achieve movement towards equal accessibility of services. But
only two hundred or so action plans have been submitted to date, out of
all the government departments, businesses and other organisations in
Australia. The legislation also provides only very general indications
of what a plan should contain, so the quality of plans varies widely.
The position is very different to that with affirmative action for women,
where reporting is compulsory for employers of more than 100 people and
where reports are made to an agency with substantial resources to assess
the reports received.
Lack of HREOC enforcement or complaint initiation power
As I said earlier, the Commission has experimented with public inquiry
approaches, either as part of the investigation of a complaint or in response
to a pattern of complaints, to widen the strategic impact of the legislation.
But this still requires that complaints be lodged by someone in the first
Surveys of people who have used the complaints mechanism indicate that
most people find the Commission's conciliation service accessible and
valuable. Some have also found the process to be stressful and time consuming
and at times unable to deliver the sort of outcome they were looking for.
I would like to see more strategic use of the legislation by organisations
and activists in the disability community. But when the Disability Discrimination
Act was introduced there was also provision for the Disability Discrimination
Commissioner to pursue discrimination issues as if a complaint had been
However, this "self-start" power had some technical defects
which in practice made it unusable, and it was removed when the machinery
provisions of the legislation were revised in 1999. It would be timely
to consider how an enforcement role such as this could be reinstituted
in Australia. This sort of power is standard for regulatory agencies outside
the human rights area, for example in consumer protection. I cannot see
why human rights agencies should not have the same range of tools at their
disposal as other modern regulatory agencies.
Disability mandate for all agencies of government
A last point to emphasise is that human rights of people with disabilities
cannot be effectively advanced if they are only the responsibility of
a human rights agency.
Some of the major areas of success in Australia have involved negotiating
to get other areas of government responsible for regulation in areas such
as transport, buildings and telecommunications to address disability access
issues within their areas of responsibility.
A better legislative model though would be one which assigned this level
of responsibility at the outset. This was done in the United States for
example with the specialist transport and telecommunications regulators
having responsibilities to bring forward disability access regulations
in these areas rather than all responsibility resting with the civil rights
division of the Department of Justice.
As we work towards the possibility of an international convention on
disability and towards ensuring that such a convention draws on as broad
a range as possible of national experience, I think it is important to
keep in mind that we also have much to gain from direct exchange of national
experience in addressing disability issues.
Accountability, reporting and auditing
One of the motivations for development of a binding international Convention
or treaty on human right and disability is to increase the level of accountability
at the national level on these issues.
The binding instruments in most cases do not refer to disability or
to the additional dimensions which disability brings to protection of
human rights, while those instruments which do deal more specifically
with disability (in particular the Standard Rules and the relevant General
Comments adopted by treaty bodies) do not have the same authoritative
status and profile as direct treaty provisions.
However, it is important that in discussing a possible Convention we
do not lose sight of what is already there in the Standard Rules and what
roles national commissions might have in improving awareness and implementation
of those Rules.
The history of attempts to develop an international treaty on disability
is already a long one, and the latest attempt is not guaranteed to succeed.
So we need to ask, is it necessary to wait for a Convention to be developed
and ratified before we can see improved public accountability for human
rights outcomes for people with disabilities?
I do not think so.
At the last major summit meeting I held with disability peak organisations
one of the major issues raised was monitoring of implementation of the
Participants at the summit discussed some of the difficulties in meaningful
auditing or benchmarking of human rights outcomes. But there was agreement
that at the least we need to have collected together more accessibly what
information there is, on what is being achieved and what remains to be
Of course, there is the issue of how much time and resources to spend
in describing the present reality in various ways - when the point, after
all, is to change it.
But I do think national commissions should do all they can to increase
the effective accountability of their governments for performance against
the Standard Rules.
One obvious possibility would be for us to receive and publish regular
NGO reports on our own web sites and seek to achieve publicity for and
responses to these.
Depending on resources, there may be other roles we can also play in
relation to the standard rules. On this issue also I hope we can share
ideas and experience.