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Annual Report 06-07: Chapter 7 - Disability Rights

7: Disability Rights

7.1 Statement from the Commissioner

In December 2006, HREOC welcomed the adoption of the Convention on the
Rights of Persons with Disabilities
by the United Nations General Assembly
This followed an 8th and final drafting session in August 2006 in
which I was again honoured to be included as a member of the Australian
delegation. I congratulate the Australian Government as well as Australian
disability organisations on their contribution to the development of the

On 30 March 2007, we applauded the Australian Government for being among the
first countries to sign the Convention on the day of its opening for signature.
We are now working towards early ratification of the Convention.

This Convention is hugely important in recognising beyond doubt that 650
million of the world’s people with disability are entitled to the full
range of human rights. The Convention also plays a critical role in explaining
to governments and societies what measures are needed to make those rights a
reality – if not in every practical detail then at least in more detail
than we have had in earlier human rights instruments. I believe the Convention
also offers historic opportunities here in Australia to improve how our
governments and other institutions deliver on human rights and equal opportunity
for people with disability and their families. In particular, I believe it will
provide the focus we need to start looking at those areas often described as
‘unmet needs’ in a new way, where we see them as rights denied or
inadequately protected.

This report presents what I believe is an impressive range of work and an
encouraging roll call of results from what is after all, a small human rights
agency. For HREOC, as for many areas of government, the Convention provides an
important reference point on how many issues remain to be addressed in promoting
equal access and opportunity for people with disability.

As made clear in this report, while the Disability Discrimination Act (DDA)
has enabled us to achieve much in advancing the rights of people with
disability, through the processes provided by the Disability Discrimination Act,
there are several areas where progress has been frustratingly slow. In the
coming year I will be dedicating major efforts, both to promoting completion of
long-running processes, and to ensuring that HREOC explores all avenues for more
widespread and timely progress towards an Australian society which truly does
include, and fully benefits from the participation of, people with disability as

7.2 Research and policy

7.2.1 Employment and Disability Inquiry

HREOC has continued to follow up on its National Inquiry into
Employment and Disability
Report which was tabled by the
Attorney-General in federal Parliament in February 2006.

The federal government responded positively in 2006-07 to the Inquiry’s
recommendations, including the launch in August 2006 of the JobAccess
one-stop- shop information service on employment and disability. Other welcomed
initiatives include reforms to the Workplace Modifications Scheme, and in
January 2007, the commencement of an insurance cover scheme for work trials.
Other recommendations, including adoption by the federal government of an
accessible procurement policy, remain under discussion.

HREOC continued to convene working groups on a number of areas identified by
the Inquiry, including ongoing employment supports and the relationship between
occupational health and safety legislation and equal opportunity laws. HREOC has
welcomed substantial work being done by the Office of the Australian Safety and
Compensation Council (OASCC) to address one of the main obstacles to the
employment of people with disability in the open workplace – the
perception by employers that there is an increased exposure to legal and
financial risks related to occupational health and safety. HREOC and OASCC
issued a joint media release on 27 June 2007 launching OASCC’s research
report, which highlighted the lack of increased occupational health and safety
risk for workers with disabilities.

HREOC also had discussions with the Hon Mr Joe Hockey, (then) federal
Minister for Human Services, and the Department of Human Services, regarding
accessibility of premises and services, and helped to produce an accessibility
checklist for contracted service providers. With the Department’s
agreement, HREOC has further developed this material for use by service
providers and building owners more generally.

Preparatory work was also conducted on projects related to mental health and
employment and related issues, which will be pursued in 2007-08.

7.2.2 Access to electronic commerce

3 December 2006 the Australian Bankers’ Association (ABA) released Accessibility of Electronic Banking: Progress Report 2006. This was the
second progress report issued by the ABA since the 2002 introduction of
voluntary industry standards on Automatic Teller Machines (ATMs), Electronic
Funds Transfer at Point of Sale (EFTPOS), telephone and internet banking. HREOC
congratulated the ABA and its members on considerable progress made in improving
access to these services. On the same day, the ABA released draft guidelines
developed in consultation with HREOC to help banks and other financial
institutions design and implement authentication systems to protect against
fraud in ways that do not exclude customers with disabilities or older people.

7.2.3 Captioning

Cinema captioning

After discussions with HREOC, the Film Finance Corporation (FFC) announced in
May 2007 that as from 1 July 2007 producers seeking funding from the FFC would
have access to funds to ensure their films were captioned for both cinema
release and later DVD release.

HREOC continues to discuss with industry and disability community
representatives, possibilities for increasing access to the number of cinemas
capable of displaying captioned movies.

Television captioning

Subscription television: An agreement reached in 2004 between HREOC,
the Australian Subscription Television and Radio Association (ASTRA) and
disability organisations, aimed for an initial 20 channels to caption five
percent of programs in year one, increasing by five percent each year for five
years to reach 25 per cent captioned. A further 20 channels were to start adding
captions within two years.

In July 2006, HREOC was able to congratulate ASTRA on a report which
indicated that average captioning levels already exceeded the 25 percent
required by the end of the five-year agreement.

ASTRA is due, under the terms of the temporary exemption granted to
ASTRA’s members, to conduct a review of possibilities for further
increases in captioning on subscription television during 2007-08 and to present
a further plan for captioning to HREOC in June 2008.

Free to air television: Under an agreement reached in 2003 between
HREOC, Free TV Australia (FTVA) and disability organisations, FTVA was required
to implement staged increases in captioning levels (reaching 70 percent of
programming between 6am and midnight by December 2007). FTVA was also required
during 2006 to commence a review of possibilities for further increases in
captioning when the current exemption granted in 2003 expires in 2008. FTVA has
advised that the review has started and they expect to be in a position to
consult with disability community organisations on a proposal in the latter half
of 2007.

DVD captioning

Early in 2007, HREOC hosted a DVD Access Roundtable which has
established working groups to improve the availability of captioning and audio
description on DVDs.

Agreement has been reached with the DVD industry body, the Australian Visual
Software Distributors Association (AVSDA), over access feature information that
will be placed on the DVD covers to ensure consistency among AVSDA members.
AVSDA has also agreed to prepare an industry protocol setting out expectations
that their members would use their best endeavours to locate and make available
access features on DVDs where they were available or technically able to be
included. It is encouraging that some AVSDA members have already initiated
improvements in their products as a result of the discussions taking place.

7.2.4 Accessible consumer electronics products

In June 2007 HREOC commenced work towards a discussion paper on access issues
affecting people with disability in using a range of consumer electronics
products as well as identifying possibilities for addressing these

7.2.5 Electoral access

Following discussions between HREOC, the federal government, the Australian
Electoral Commission and representatives of people with disabilities, federal
Cabinet approved a trial of electronically assisted voting in August 2006. HREOC
continued to help develop the details of the trial, with locations due to be
announced in July 2007.

HREOC also reminded political parties and candidates that it was important in
the lead-up to a federal election for them to ensure their information was
accessible and that disability issues were taken into account in their

7.2.6 Health access

Following discussions involving HREOC, the Minister for Health and Ageing,
the Royal Australian College of General Practitioners (RACGP) and disability
representatives, HREOC was able to welcome in February 2007 changes to Medicare
rebates to facilitate longer consultations for people with intellectual
disabilities. This was a particularly important development as it addresses one
severe disparity between health outcomes for people with intellectual disability
and other members of the Australian community. HREOC will continue to work for
progress on other aspects of equal access to health services and information for
people with disability.

HREOC has continued to work with the RACGP and disability advocacy
organisations to improve the availability of height-adjustable examination beds
and improve information for health care addition by the RACGP of a new criterion
to its Standards for General Practices, which includes an advisory
reference to adjustable-height examination beds. HREOC will continue to work
with the disability sector and the RACGP to encourage general practices to
provide adjustable-height examination beds and will continue to advocate for
these to become mandatory under the Standards for General Practices.

7.2.7 Telecommunications

HREOC participated in the development of a code, registered in October 2006
by the Australian Communications and Media Authority (ACMA), to require the
manufacturers or importers of all phones to advise telecommunications companies
of the disability access features of their products.

HREOC also worked with the telecommunications industry body, the
Communications Alliance, to develop an industry voluntary guideline for payphone
accessibility. This was released in December 2006.

7.2.8 Web access

accessibility continues to be a significant concern for various groups of people
with disabilities. The World Wide Web Consortium continues to work on revising
its Web Content Accessibility Guidelines, Version 1.0. HREOC refers to
these guidelines as the accepted international benchmark in Web Accessibility
Advisory Notes
which offer guidance on the level of accessibility required
for compliance with the DDA. HREOC is continuing to discuss the proposed version
2.0 of the guidelines with the

7.3 Education and Promotion

Most of HREOC’s awareness and compliance promotion work in the
disability area is connected to policy work and legislative development and is
reported on under those headings accordingly.

The Commissioner has worked successfully during 2006-07 to achieve increased
media coverage of positive initiatives by government and industry bodies on
disability issues where HREOC has been involved, including access to voting,
health services, banking access, captioning, and a range of initiatives
regarding employment.

Public use of the disability rights section on HREOC’s website
continues to be strong, with 1 705 260 page views recorded in this period.
Information is continuously being added to, for example with advice answering
frequently asked questions and information on recent complaint outcomes.
Publications are also distributed in print and other formats on request.

7.4. Legislative reform and

7.4.1 Disability Standards

The DDA provides for 'Disability Standards' to be made by the
Attorney-General in specified areas. These currently include: accommodation;
administration of Commonwealth laws and programs; education; employment; and
public transport. Contravention of a Disability Standard is unlawful under the

HREOC supports adoption of Disability Standards as offering potential to
increase certainty and clarity of rights and responsibilities for relevant
parties, and thereby advance the objects of the Act. HREOC has a function under
the DDA to advise the Attorney-General regarding the making of Standards, and to
date, has performed this function by practical participation in Standards
development processes rather than by formal reporting.

7.4.2 Access to premises

HREOC has continued to work intensively with the Australian Building Codes
Board and industry, community and government members of the Board’s
Building Access Policy Committee, towards finalisation of Disability Standards
on access to premises. This work has occurred in conjunction with upgrading of
the access provisions of the Building Code of Australia, to promote improved
access for people with disabilities and to provide industry, locasl government
and other parties with a clearer and more coherent set of rights and
responsibilities. As at June 2007, Ministers were still considering revised
proposals from the Australian Building Codes Board taking into account the
results of the Regulation Impact Statement process on the draft standards issued
in 2005.

While awaiting progress towards Standards, HREOC has commenced a number of
initiatives aimed at improving understanding about the importance of access in
the built environment. These include:

  • improving access on our website to local and overseas information dealing
    with issues such as recreational facilities, playgrounds, public footpaths and
    fitout matters;
  • preparing Access to Buildings and Services - Guidelines and
    (due for release in July 2007) to assist building owners and
    service providers to identify issues that might affect the level of access
    provided by their current building, or a building they are thinking of buying or
    renting. It will also help service providers to look more generally at whether
    the goods and services provided are accessible to people with a range of
    disabilities; and
  • preparing a guide (also due for release in July 2007) to assist designers,
    builders, certifiers and planners to better understand the importance of
    applying the access features already required by the Building Code of Australia
    and its referenced Australian Standards, and demonstrating correct practice and
    common mistakes.

HREOC also continues to contribute to the work of
Standards Australia, in particular, its review of standards covering the
interior fit-out of buildings. HREOC also continued to work with industry and
regulatory bodies to promote actions to address the current and growing need for
more accessible housing.

7.4.3 Education

Following the entry into force of Disability Standards for Education in
August 2005, HREOC has continued to discuss with the Attorney-General’s
Department and the Department of Education, Science and Technology, possible
further measures for promotion and implementation of the Standards.

7.4.4 Public transport

The first five-year review of the Disability Standards for Accessible Public
Transport commenced in March 2007. The review is being conducted by independent
consultants on behalf of the Minister for Transport and Regional Services and
the Attorney-General and is expected to report in October 2007. HREOC will
contribute its expertise and experience to the review.

Significant issues regarding aviation access continued to be raised during
2006-07 through complaints under the Disability Discrimination Act. HREOC has
met with the Department of Transport and Regional Services, workplace and
aviation safety regulators, aviation industry participants and disability
community representatives to seek to resolve these issues. As at June 2007,
however several complaints regarding capacity of people with disability to
travel independently had been unable to be resolved by HREOC and were proceeding
to the Federal Court.

7.4.5 Productivity Commission

The federal government decided in 2006 that a range of amendments should be
made to the Disability Discrimination Act in response to the review of the Act
by the Productivity Commission, and to identify any associated amendments to the
DDA which might appropriately be pursued as part of the same process. HREOC
supports those amendments being made as soon as possible and looks forward to
the presentation of a Bill to the federal Parliament.

7.5 Consultation

Close consultation with disability community representatives and with
relevant industry bodies is a feature of all HREOC project and policy work in
the disability rights area. HREOC uses an extensive email list together with its
website to notify interested parties of policy and project initiatives and to
seek comments.

As detailed above, specific consultative structures have been maintained to
continue the work of HREOC’s National Inquiry on Employment and
in a number of areas.

HREOC hosted a workshop on 27-28 June on the new Convention on the Rights of
Persons with Disabilities for representatives of disability peak organisations,
disability advisory bodies and state and territory equal opportunity agencies.
The workshop was opened by federal Attorney-General Philip Ruddock, who
expressed his strong support for prompt movement which would enable the
government to consider ratification of the Convention. He also indicated
commitment to continuing consultation with disability organisations in those

7.6 Exemptions

Section 55 of the DDA gives HREOC the power to grant temporary exemption from
provisions of the Act which make discrimination unlawful. (The exemption
applications policy is available on HREOC’s website or on request.)

The temporary exemption mechanism is an important way to manage the process
of transition over time from discriminatory and inaccessible systems and
environments to more inclusive ones.

Exemption processes are open to public participation through online
publication of HREOC’s notice of inquiry and details or text of
applications. Submissions from interested parties are also published.

7.6.1 Hervey Bay RSL

On 25 May 2007 HREOC granted a temporary exemption from the operation of
relevant provisions of the Disability Standards for Accessible Public Transport
and the DDA, to Hervey Bay RSL Club. This exemption concerned physical access to
the club’s newly acquired courtesy buses and was granted on condition that
the club replace or retrofit the buses to provide access by 31 March

7.6.2 Australasian Railways Association

On 22 January 2007 HREOC granted a series of temporary exemptions to members
of the Australasian Railways Association (ARA) in relation to provisions of the
Disability Standards for Accessible Public Transport and of the DDA. These
exemptions were granted on condition that ARA members meet a set of revised
compliance requirements and report to HREOC on implementation of the revised
obligations. This decision followed lengthy consultation between HREOC and
industry and community representatives following an application in July 2005 by
the ARA for a range of exemptions. In each case, the exemptions granted were
supported by the Accessible Public Transport Jurisdictional Committee, with
which HREOC is required to consult on exemptions relating to the Disability
Standards for Accessible Public Transport.

Decisions were deferred on a number of other issues for which the ARA had
also applied for exemption, pending further consultation between ARA, community
representatives and HREOC.

7.6.3 Airport Direct

On 15 December 2006 HREOC
granted an application for a temporary exemption from the operation of relevant
provisions of the Disability Standards for Accessible Public Transport and the
DDA, to permit deferral of provision of wheelchair access on a public transport
service to be known as Airport Direct, operating from Shepparton to Melbourne.
This followed refusal of an earlier application, in February 2006, where HREOC
was not satisfied that the application went beyond a request for certification
of unjustifiable hardship considered an
inappropriate purpose for the temporary
exemption power. The successful application differed significantly from the
initial one in that it did not simply seek permission to operate an inaccessible
vehicle indefinitely, but rather sought protection pending the replacement of
the inaccessible vehicle within a defined and short period.

7.7 Action Plans under the Disability
Discrimination Act

Action Plans under the Disability Discrimination Act provide an
important mechanism for organisations to structure their own compliance efforts.

As at 30 June 2007, 516 plans were registered with HREOC (an increase from
368 in June 2006). These comprise: 43 business enterprises, 54 non-government
organisations, 36 federal government and 58 state and territory government
departments and agencies. There are also 154 local government plans and 171 from
education providers.
The register of Action Plans, and those plans provided
electronically to HREOC (467 of the total), are available on the website. The
register assists other organisations interested in developing their own plans as
well as individuals interested in assessing the effectiveness and implementation
of an organisation's Action Plan. A number of organisations have also submitted
revised plans or implementation reports.

7.8 Legislative development

The Disability Discrimination Unit also contributes to legislative
development by making written and oral submission to Parliamentary and other
Inquiries. A list of these submissions can be found in Chapter 3 of this report,
Monitoring Human Rights.

7.9 Speeches

Listed below is a selection of speeches made by Commissioner Innes during
2006-07. Speeches and papers are available on HREOC’s website at:

Keynote speech: NSW Department of Education and Training Teacher
Consultants Conference
, Sydney, 17 May, 2007.

Deafness forum presentation to Princess Alexandra Hospital, Brisbane,
20 March, 2007.

Spinning an Accessible Web: Presentation to E-Accessibility Forum,
Adelaide, 6 March, 2007.

Launch of Westpac Accessibility ActionPlan, Sydney, 11 December, 2006.

Disability and Information Technology: Forum on Engaging Canadian and
Australian Information Technology Companies in Inclusion and Accessibility,
Sydney, 4 December, 2006.

Housing, Human Rights and Sustainability: Australian Network for
Universal Housing Design forum, Sydney, 8 November, 2006.

Presentation to Australian Association of the Deaf national
, Adelaide, 3 November, 2006.

TheDisability Standards for Accessible Public Transport where are we?
Bus Industry Confederation Conference, Canberra, 31 October, 2006.

Pathways to employment: NSW Council for Intellectual Disability / NSW
Council of Social Service conference, Sydney, 18 September, 2006.

Presentation to Queensland Taxi Council forum, Toowoomba, 12
September, 2006.

Presentation to Sydney City Access Forum, Sydney, 6 September, 2006.

Occupational Health and Safety and HREOC's National Inquiry on Employment
and Disability
: Discrimination Alert and Occupational Health News
Conference, Sydney, 1 September, 2006.