The Disability Discrimination Act Seven Years On: Have We Had The Good Years Or Are They Still To Come?

Graeme Innes AM
Deputy Disability Discrimination Commissioner
Human Rights and Equal Opportunity Commission

Pathways Conference, Canberra 6 December 2000

Some people say that the hardest part of preparing a presentation such as this is working out the title. That's not my experience.

I wrote the title for this presentation almost a year ago when I was first asked to give it. I came back to it two weeks ago to write the actual paper and thought "what does this mean?"

I know a fair bit about the DDA (well you'd hope so as a hearing commissioner and deputy portfolio commissioner) and it's been law now for just over 7 years. I understand the biblical analogy in the title. But what do we mean by the "good years"?

If by good we mean a wave of "victories" by the heroes of the disability cause over the evil education empire then I think we could say that, with a few exceptions, we're still waiting. If by good we mean clarification of a number of concepts in a new piece of legislation which (while most had been around in State law for a decade) were perceived as new and threatening, then I'm not sure that on that front progress could be described as much more than fairly sedentary. If by good we mean gradual and considered progress towards clearer and more student-focussed integration policies then perhaps we could speak in somewhat more congratulatory tones, but I'm not sure how much direct credit the DDA can claim for this. And if we mean by good progress towards a generally less discriminatory environment, which has spin-offs in the education sector, then we have come some way, but we have a long way to go.

In the standard style of a lawyer, I must start this presentation with a caveat. I am a lawyer- I'm not an educationalist. I will be talking from that perspective, and attempting to assess the impact of the DDA on the education area. The main object of the DDA is the elimination, as far as possible, of discrimination on the ground of disability in the area (for the context of this conference) of education. So my purpose today will be to try to assess how far we have progressed towards this object in the first seven years, and our chances for elimination in the next 7. I will briefly explain the DDA, describe some mechanisms for more quickly achieving policy and systemic change which in my view are sadly under-utilised, and look at some decisions and their implications for the education system.

So let me start with a brief explanation of disability discrimination legislation.

The DDA (and equivalent legislation in all States and Territories) makes it unlawful to discriminate against a person on the grounds of their disability in the area of, amongst others, education. There are two types of discrimination: direct, which is less favourable treatment on the grounds of the person's disability, in similar circumstances to those of a person without the disability.

The case of Finney v The Hills Grammar School which I heard - where Scarlet Finney was refused enrolment at the school on the grounds of her disability - is a clear example of direct discrimination. Indirect discrimination is treatment which on its face appears neutral, but which has a different impact on a person with a disability than on people without that disability, and which is not reasonable in the circumstances. An example would be the strict application of a time limit for the completion of exams on a student who, due to their disability, needed to take 10 minute rest breaks from hand-writing each hour. Provided that the student was kept isolated from others who had finished the exam, it would not be unreasonable to add their break time to the time for the exam's completion.

Disability is broadly defined and includes physical, sensory, intellectual and psychiatric disability, and the presence in the body of organisms capable of causing disease. The definition covers past, present, future and imputed disability. The DDA also applies to discrimination because of the disability of an associate of the person, as well as because of the use by the person of an assistance animal, an assistant such as an interpreter or reader, or an assistance device.

The DDA recognises that often people with a disability will, because of the nature of their disability, need to do something in a different way to achieve the same overall result. It therefore includes provisions allowing for reasonable accommodation or reasonable adjustment.

Much has been written about what this concept means, particularly in the education area. The Federal Court in A School v The Human Rights Commission said that it does not mean that an educational authority has an obligation to positively discriminate. However, as confirmed in the recent remitted decision in that case, it does mean that some account must be taken of the impact of the disability, and some adjustment or accommodation made. In this case Commissioner McEvoy used the term "reasonably proportionate" to clarify what an educational authority needs to do in order to meet the requirements of "different accommodation or services" referred to in s 5 (2) of the DDA. Briefly, it must take into account the needs of the person relating to their disability. This is an area in which, in my view, the law is not yet clear.

The DDA applies to private and public schools, and throughout the spectrum of education from infants schools to universities, TAFEs etc.

The DDA is complaint based. This means that no action is taken by the Commission unless a complaint is lodged. When this occurs the Commission is required to investigate the complaint and attempt conciliation. If the President of the Commission forms the view that the complaint does not involve an unlawful act, that there is an alternative adequate remedy, that the complaint lacks substance, or that conciliation cannot be successful, then she terminates the complaint. Upon such termination the complainant has 28 days in which to seek a hearing, which will occur before a Federal Magistrate or a Federal Court Judge.

I have provided this brief explanation of the DDA for two reasons.

Firstly, it will be helpful for some of you to clarify the general processes and will contextualise my further remarks.

Secondly, it emphasises the point which I want to make in my assessment of the first 7 years of the Act. It is my view that, for the elimination of disability discrimination in general, and the elimination of disability discrimination in the area of education in particular, using an individually-based and essentially private complaint investigation and conciliation process, followed by hearings in a small minority of cases, has not, and will not, be successful.

It takes too long, is very difficult for participants on both sides; only provides solutions (when they are provided) for individuals; and fails to address the systemic change that is necessary.

It is true that a number of decided cases have established precedents and contributed to policy change; but the point is that it is policies that need to change, and we need to find more effective tools to work with educational authorities to change those policies. It is also true that some policy and systemic change is occurring, and it is important that these same mechanisms recognise that, and provide protection from complaints where it has been earned by the systemic elimination of discrimination, and where more effective dispute resolution processes are established.

As well as the processes I have described, the DDA provides for the granting of temporary exemptions (up to 5 years) and the Commission has decided that it will grant these where the applicant can demonstrate that it is advanceing the objects of the Act. It also allows for the enactment of Standards in the education area. Thirdly, it allows for a more public approach to the investigation of complaints.

Let's consider those options.

In my view the exemption process has potential for significantly wider use than it has had so far, as a positive means of structuring movement towards elimination of disability discrimination. This includes in areas where appropriate results are less readily specified in advance than the sort of engineering issues which arise in public transport. What can be specified more generally are appropriate processes, both to prevent discrimination occurring and to provide more speedy and perhaps more expertly based redress when it does occur. This could include the area of education, one of the areas where the greatest numbers of disability discrimination complaints received by HREOC and by State and Territory agencies.

In her 1997 "Foundations" paper the late Elizabeth Hastings, then Disability Discrimination Commissioner, emphasised the need for other agencies rather than only human rights and anti-discrimination specialist agencies to do their share of work in achieving a non-discriminatory world:

"A human rights agency in the position of the Human Rights and Equal Opportunity Commission has neither the expertise nor the authority, nor sufficient personnel, to regulate everything itself. As far as possible the aim should be to have access and equality built in to the ordinary way of doing things rather than being an additional set of requirements subsequently imposed from the margins."

A brief survey of anti-discrimination agencies' annual reports over the years shows chronic problems of limited resources compared to the task to be performed. Frequently this shows in delays in handling complaints, with substantial waiting times until a matter is even assigned to a complaints officer. Often this reduces the prospects of achieving an appropriate remedy. This is particularly the case on issues where time is critical: where a child is missing out on a year or more of effective access to education. On these issues, we ought to be able to acknowledge that a perfect, handcrafted remedy by expert discrimination agencies two or more years later is nowhere near as good as a reasonable remedy on the spot.

I recently handed down a decision in an education complaint under the DDA, Purvis v State of New South Wales. Detailed, expert and extensive processes were applied in this case by HREOC, both at the stage of attempted conciliation and, if I may say so, at hearing. Despite the award of substantial damages which I found appropriate, it is hard to describe the result in this case as a win for anyone or for the objects of the legislation. Daniel Hoggan, the person discriminated against in that case, was excluded from his school at the end of year 7 and did not return. Daniel missed high school. Damages well after the event are poor compensation for the human costs incurred in the course of this matter. This includes the years spent out of school by a young person and also includes the stresses placed not only on parents but also on teachers who it was clear to me were making huge efforts although, as I found, with inadequate information and resources and without sufficient adherence to departmental policies which may have led to better results.

It is hard not to think that a decision process of say 70% the quality but say 2 or more years faster - giving an authoritative decision one way or the other - would be better in terms of achieving the objects of the Disability Discrimination Act. If an exemption were required to give sufficient incentive to apply such a process and were applied for, I think it would need to be given serious consideration. There is of course an obvious concern regarding the risk of incorrect decisions and substandard outcomes. We need, though, in the anti-discrimination industry to weigh such a risk accurately against what are not risks but present certainties: the certainty that some matters are not being presented for decision or assistance at all because of the limits of available processes; and the certainty that many matters which are being presented to anti-discrimination agencies are subject to long delays which deprive alternative dispute resolution processes of much of their effectiveness and rationale.

We have not as yet had any applications for exemption from the legislation based on the proposition that an industry or organisation's own complaints system and policies should be allowed to operate in place of the process of complaints to HREOC and to the Federal Court. In my opinion, there would be good grounds to grant such an application and allow this approach a temporary and reviewable opportunity to prove itself, so long as it could be demonstrated that such a system showed reasonable prospects for achieving better results in advancing the objects of the legislation.

This sort of approach seems still to be uncharted territory in discrimination law in Australia. It has however been discussed extensively in the United States, particularly in relation to environmental law, under the name of "regulatory relief". The term "regulatory relief" may be misleading, since the issue for the Commission is not one of industry being relieved of burdensome obligations, but of finding more effective and efficient ways for the objects of the legislation to be fulfilled.

There appears to be considerable potential for gains in effectiveness and efficiency in measures to comply with the DDA through the Commission giving more recognition to appropriate internal remedies, industry or sector based remedies, and other regulatory and quasi-regulatory regimes, and avoiding duplication of the work of such remedies and regimes. Where such alternative remedies are not yet in place, how effectively recognition by the Commission encourages their development will depend on a number of factors including perception by organisations of their degree of exposure to liability under the DDA assessment of the costs of dealing with complaints under the DDA on a case by case basis through the Commission: including costs in management and staff time in dealing with a complaint, damage to workplace relationships, possible costs in staff turnover, legal costs where applicable, and public relations consequences assessment of costs of developing and operating an alternative remedy benefits to be gained, including avoidance or resolution of disputes and reduction of exposure to legal liability. Organisations with responsibilities under the DDA will need to make their own assessment of these factors.

In many cases there should be substantial net benefit to be gained by development and implementation of measures to remedy disability discrimination on the basis that the Commission will give appropriate recognition to these measures. However, the exemption mechanism has significant limitations. Exemptions are temporary, being only able to be granted for five years at a time. This may limit their usefulness where the nature and scale of measures required to achieve equality is such that a longer transition period is required. Some organisations have considered applying for an exemption including commitments to actions to achieve equality, but have decided not to proceed because they have been reluctant to appear to admit to being discriminators seeking permission to continue discrimination.

Of course, any exemption application made would have to be considered on its merits and I cannot give any undertakings in this area. Also, such applications would have to go through the Commission's public process, which requires their publication on our website, and the seeking of submissions on whether or not they should be granted. I simply seek to leave these issues with you for consideration, because I think that we could be doing better co-operatively than we have done so far.

Education standards have been under active discussion under the auspices of the Ministerial Council on Employment, Education, Training and Youth Affairs since at least 1996. In 2000 the point was finally reached where draft standards were issued for consultation, with the initial comment period closing in November. HREOC submitted a brief comment stating that in our view the draft reflected, and did not undermine, existing rights and responsibilities, but that judgments on whether in other respects the draft achieved its intended purposes should come in the first instance from education consumers and providers. So far, the responses I have seen in both sectors have been mixed. There would clearly be some advance in specification of rights compared with the existing position under the DDA if standards were adopted close to the form of the current draft - for example in the duty to make reasonable adjustments in a number of areas being explicitly stated rather than needing to be inferred from the general terms of section 5 2 and section 6 of the DDA. In my view providers and consumers would benefit from such clarification. However, standards will only be adopted where consensus can be achieved, as we have learned from the transport area. At this stage it is uncertain whether such consensus can be reached.

Whether or not such standards are adopted, though, in my view there remains a need for further consideration of mechanisms to ensure that rights recognised in law translate into rights enjoyed in practice.

The major successes which have been achieved to date in DDA standards development and exemption processes have in fact been in direct response to complaints. Complaint processes are clearly capable of having significant policy and educational impact in their own right, as well as being a major means of driving standard setting and compliance processes. But effective performance of these roles requires us to look closely at current and potential processes for dealing with complaints.

I have made a number of presentations recently on our public inquiry process, in which we deal with complaints which raise policy or systemic issues on a public basis. These presentations are on the Commission's website. I do not intend today to repeat what I have said in any detail, but I urge you to look at those issues and apply your mind to their applicability in the education area.

Public inquiries on access to the electoral process, captioned movies and interference caused to users of hearing aids by digital mobile phones have been very successful in addressing what are clearly issues of potential systemic discrimination, and of involving all industry players in the process, so that a co-operative result can be achieved which will benefit people with disabilities across Australia.

I have focussed so far on the implications of various mechanisms not so widely recognised in the DDA specifically in the education area. Let me conclude with some comments on events in the more general area which have had implications on education issues, and on a particular case which I think sends a message.

Firstly, let me tell you a story. Bruce Maguire, who some of you will know personally or through the media, wanted to buy tickets so that he and his family could attend the Olympic games. He also wanted to be able to access the games website- run by SOCOG (the Sydney Organising Committee for the Olympic Games); and expecting millions of hits during the games period. Very reasonable aspirations you might say. But not for Bruce because he- as a blind person and a braille user - was excluded by SOCOG from doing both of these things.

When Bruce informed SOCOG of these problems over a year before the commencement of the games they got very busy. But they did not get busy rectifying the problem. They got busy, with the assistance of their lawyers, finding ways to delay and avoid the issue. Bruce was finally able to purchase tickets after the first ballot for tickets had been completed when the Human Rights Commission - following Bruce's complaint - directed SOCOG to put a process in place. But, because of SOCOG's delay, Bruce was never able to properly access the SOCOG website.

Several months before the games, when Bruce's case finally got to a substantive hearing (after jurisdictional issues were argued before the Federal Court in a blatant delaying tactic) the Commission ordered SOCOG to put alt-tags on graphic images, and to make the results tables for the various sports accessible. SOCOG had argued that this would take them over a year to achieve, and would be at a huge cost. But the Commission accepted the evidence of Bruce's witnesses that the amount of work necessary would be quite small.

However, despite the Commission's orders, SOCOG did not make the changes.

At a further Commission hearing several weeks ago the Commission; as a result of SOCOG's intransigence, the public and international importance of the site, and the loss suffered by Bruce as a result, directed SOCOG to pay Bruce damages of $20000. SOCOG are currently considering their options. Sadly, if SOCOG decide not to pay this amount, the commission's decision is not enforceable, and Bruce will have to go through the whole process again in the Federal Court. But the decision is a landmark, because it says to website operators throughout Australia that if their sites do not meet wwwc access requirements, people with a disability have an avenue of action available.

This, of course, applies equally to educational authorities who have websites. I am sure that there would not be many these days who do not.

The Commonwealth government, partly as a result of the work done through the inquiry process into access to e-commerce conducted by the Commission, announced earlier this year that all of their websites would be compliant with World Wide Web Consortium accessibility standards by December. The Internet Industry Association of Australia are currently organising a public campaign amongst their members to encourage compliance. My advice to all of you here whose organisations have websites is: check to see if they comply, and have them rectified if they do not. There are simple internet tools available for this task, and a score or more of consultants around the country waiting to tell you how to do it. It most cases it should not take much time or money, but it will remove your vulnerability to complaints, and make the material on your sites available to a much broader market. In this era of competition in education, isn't that what the provision of information is all about?

Whilst on the issue of the Commission's inquiry into access to e-commerce, one of the other subjects considered in that report- also available on our website- was the question of copyright to material held in digital form. The Parliament passed legislation in this area around the middle of this year, which also has implications for the education sector. Briefly, it provides that the exceptions to current copyright law applying to individuals and educational authorities will also apply to digital material. This should remove a major barrier for students wishing to gain access to study material in schools and universities. Again, further information on this issue can be obtained from the Commission's website. I urge those of you involved in obtaining material for students to take this into account. As more information becomes available in digital form the delays which so frustrated me and many other students - sitting in class without a textbook in a format that I could use, when all the other students had theirs in print - should become less and less.

Finally, I want to remind you all of a case that was determined several years ago in the Queensland Equal Opportunity Tribunal, but which seems not to have gained the recognition that it should. I refer to the case of Kinsella v QUT. It dealt with a graduate who used a wheelchair and his participation in his graduation ceremony. QUT proposed that whilst all of Bradley Kinsella's classmates sat in the hall with their families and friends, fully participating in the ceremony and walking from the tiered seating to the ground level and then up on to the platform to receive their degrees, Bradley would sit (in splendid isolation and out of sight) in the wings of the stage, wheel on briefly to get his degree, and wheel off again. Unlike black residents of the United States in the 60's, Bradley wasn't just at the back of the bus, he wasn't even on it. Bradley Kinsella lodged a complaint about this proposal, and the Tribunal directed the university to change the venue for the ceremony so that Bradley could equally participate.

Some senior university officials have said that I am wrong to campaign on this sssue when universities around the country are collectively spending millions of dollars on making campuses accessible, and providing support for students with disabilities. But I reject this completely. University degree ceremonies are the windows of a university to the public. A university that can't get this part of the process right has no basis to a claim that it is providing equal access to education. All of the good work that you may be doing is wasted if you send the message at this important time in any student's life that if they have a disability they are different, and that whilst everyone else goes on to the platform to collect their degree, for a student with a disability the vice-chancelor will come down the steps and present yours on the floor of the hall.

I gave the occasional address at a graduation ceremony at my own university earlier this year. It was called "access by degrees: a place on the platform". The situation that I have just described still applies at this university and, in solidarity with students with disabilities at that university, while the official party sat behind me on the platform, I gave the address from the floor of the hall. The imagery alone was telling.

To summarise the messages I want to leave with you. Firstly, there has been progress over the first seven years of the DDA, but we still have a long way to go to achieve an equal society- I'm a long way from being out of a job. Secondly, we will not achieve systemic change using the individual complaints system, and their are other avenues available under current legislation which will provide more progress. Thirdly, equal access and equal relationships are more likely to be achieved more quickly, with less cost, and with less public acrimony, if educational authorities work co-operatively with students and their families towards full integration of those students into the education community. Such integration will not only enrich the lives of those students, but will enhance the quality of the educational community as a whole.