This paper discusses Australia's Disability Discrimination Act 1992. It describes the Act itself and then explores progress in two key areas: using complaints to remedy discrimination and the development of Disability Standards. The paper includes a brief discussion of some interesting case studies.

Australia's system of Government is styled on that of Great Britain. Voting is compulsory and universal for adults over eighteen years. Australia has a population of eighteen million people living in six States and two Territories; thus Australia is a Federation of States, with the Commonwealth Government having extensive but specified powers and the States retaining some rights over matters of local autonomy. There is no Bill of Rights in Australia, and no rights-based declarations in the Australian Constitution. This gives rise to important differences, compared with the situation in the United States. Australia's arms of Government - Parliament, Judiciary and Administration - are complementary to each other but have separate powers and lines of authority.

In 1998 the Australian Bureau of Statistics estimated that almost 19% of the Australian population identified themselves as having a disability, and that more than 15% of the population was handicapped by that disability meaning that they needed assistance in one or more tasks like mobility, communication or personal care. Disability and handicap are strongly related to age with the incidence of both increasing with age, especially after the age of 75 years. Among younger people there were more males than females with disabilities, whilst for seniors there were more females than males.

In 1986 the Commonwealth Government introduced the Disability Services Act, empowering the Commonwealth Government to provide funds for services delivered by non-Government organisations in areas including accommodation support and respite care, supported and competitive employment, advocacy and independent living training services. It was also foreshadowed that disability discrimination should be outlawed by Commonwealth legislation.

The Disability Discrimination Act (DDA) was passed by the Commonwealth Parliament in 1992 and enacted in March 1993. It has worked well in many respects, although people with disabilities continue to be frustrated that progress towards eradicating discrimination has been slower than anticipated. Regrettably, disability discrimination continues to be endemic in Australia.

The DDA is administered by the Human Rights and Equal Opportunity Commission (HREOC). There is a part-time Disability Discrimination Commissioner and, as a recent appointment, a part-time Deputy Disability Discrimination Commissioner. These people have responsibility for the DDA's promotion as a tool to fight discrimination and for its administration. The Commissioner and her Deputy preside over HREOC's legal investigations following the receipt of complaints, and the conduct of inquiries, and the Disability Rights Unit is concerned with all other aspects.

The DDA requires respect for the basic human rights of people with disabilities. It accepts that some differential treatment will be unavoidable, and that not all discriminatory practices can be remedied without imposing unjustifiable hardship. It uses principles of fairness and reasonableness to balance rights with responsibilities. There are some important exemptions from the DDA: some like "migration" disadvantage people with disabilities, and others like "pensions and allowances" benefit them. Australia's Social Security and Migration laws are explicitly exempted from the DDA.

The DDA uses an expansive definition of disability and has created interest in other countries. Despite slow progress with Disability Standards and the complexity of complaints processes, there has been some good progress through increased awareness and some beneficial case law.

The DDA defines "disability" quite broadly.

"`Disability`, in relation to a person, means:

and includes a disability that:

In addition to covering the traditional physical, sensory, intellectual and psychiatric disabilities, this definition covers someone who is HIV positive and covers imputed disabilities. For example, treating someone less favourably because they are gay or are a known drug user is unlawful if the discrimination is based on the presumption that the person is HIV positive. It also covers disfigurement, and the case where someone has previously had or may in the may in the future have a disability.

The objects of the DDA are:

If a person or organisation treats a person or their associate less favourably, for some reason in connection with his/her actual or presumed disability, it is unlawful under the DDA. This is generally known as direct discrimination. It is interesting to note that discrimination against the associates of people with disabilities is unlawful. Indirect discrimination is said to occur if an aggrieved person is required to comply with a requirement or condition:

The DDA makes it unlawful to treat a person with a disability less favourably when accompanied by an interpreter, reader, assistant, guide dog, hearing dog or trained animal, who or which acts as an assistant to the person in overcoming the handicapping effects of the disability.

Essentially Australia's DDA is a complaints-based law. There are also provisions to improve the situation of people with disabilities through increased public awareness and associated initiatives, and by the adoption of Disability Standards. Unlike the ADA in the United States, Australia's DDA does not have in-built compliance or monitoring mechanisms. There are three broad strategies under the DDA for reducing and remedying discrimination: complaints, awareness raising and standards.

The first strategy is via the complaints process. An aggrieved party must lodge a complaint with HREOC. If it is within the DDA’s jurisdiction, HREOC will try to conciliate the complaint. If unsuccessful, the complaint may be referred to the Federal Court for hearing and determination.

The second strategy under the DDA concerns awareness raising. One important provision here is Action Plans. Corporations and Government Agencies, large and small, can lodge Action Plans with HREOC. These do not have a legal standing. The awareness created in their very construction can be beneficial. The existence of an Action Plan can count in favour of a respondent if a complaint is made against it.

The third important strand under the DDA is Disability Standards. The Federal Attorney General can make Standards for approval by the Parliament in the areas of Public Transport, Employment, Education, Accommodation, Accessible premises and Commonwealth Government laws and programs. A Standard is a document which elaborates on the DDA, setting out the rights of people with disabilities and the responsibilities or obligations of employers and organisations which are the providers of jobs, goods or services.

The Commonwealth Government provides a small amount of funding, about fifty million Yen per year to specialist disability legal advocacy services. These organisations provide advocacy support to people with disabilities, helping them to lodge complaints and providing advice during conciliation meetings; raise awareness through community education; and participate in community discussions such as for the development of DDA Standards or regarding suggested or proposed changes to the DDA. Other organisations like Blind Citizens Australia also provide advocacy support for members to seek remedy under the DDA.

The Commonwealth DDA is complemented by a set of Equal Opportunity and Anti-Discrimination laws in the States and Territories. These laws are all similar to the DDA where they apply, but there are also subtle differences. This means that in lodging a complaint a person must think carefully about which law best suits their needs - the Commonwealth DDA or the applicable State law.

The DDA allows a person with a disability who feels aggrieved by unlawful discrimination to lodge a complaint with HREOC. When HREOC receives the complaint it will first consider whether the complaint is valid to the extent of being about an action or actions covered by the DDA. A complaint may be considered to be invalid and therefore be declined if it is frivolous or vexatious, if it is not covered by the DDA, if the complaint has been adequately dealt with under a State or Territory disability discrimination law or some other jurisdiction such as a law covering negligence, accident compensation or work-place relations is considered to be a more appropriate forum.

In lodging a complaint, the person with a disability, perhaps with the help of an advocate, must set out the circumstances of the case. If HREOC accepts the complaint it will assign a conciliator to investigate the matter and try to bring the parties together for a conciliated settlement.

If conciliation fails the matter may be referred to hearing. As originally intended under the DDA, this hearing function would be carried out by HREOC. However, a High Court challenge under the Race Discrimination Act 1975 clarified the distinction between the judicial and administrative arms of government as specified in the Australian Constitution. This has meant that HREOC determinations are unenforceable. The DDA has recently been amended so that hearings will be carried out in the Federal Court. Arrangements have been made to keep court filing fees to a minimum and to ensure that the complaints process remains accessible to people with disabilities.

HREOC's web site provides a good overview of complaints received over the last six years. It summaries the complaints, indicating the reasons why certain conclusions were reached. It can be found at www.hreoc.gov.au.

Among the services provided by Blind Citizens Australia is our individual advocacy service. We provide advocacy support and advice to blind people facing discrimination. We also help with social security and migration problems, as other major activity areas.

We have dealt with a high number of complaints made by people refused entry to public places with their guide dogs. These include restaurants, shops, taxis, hotels and bars. We find it easy to prove liability in these cases and usually they settle at conciliation. If possible we try to get a written apology, some staff training if appropriate, and a cash compensation of up to 400,000 Yen. Employment matters are more difficult to resolve, because by the time complaints are lodged the relationship between the employee and the employer has usually broken down irretrievably.

We do not get many education complaints, but we know that discrimination is widespread in education. We believe that this is because the complaints process is good in theory but slow, onerous and stressful in practice. This is particularly important as a deterrent to education complaints, because students move from class to class as time goes on, and because parents are anxious not to do anything to make the school an inhospitable or resentful environment for their child with a disability.

There is growing concern about the efficacy of the complaints process for remedying discrimination against people with disabilities. Reasons include: delays, costs in time and stress, legal complexities, strident defences mounted by respondents to defend their discriminatory acts and the high proportion of complaints which are conciliated or abandoned without leaving case law to reduce the incidence of repetitions.

There are few formal awareness raising strategies under the DDA. One emerging approach is to carry out inquiries. HREOC is currently holding two such inquiries, one concerning the accessibility of mobile telephones for people who are hearing impaired and another concerning the impact of electronic commerce and new technologies for seniors and people with disabilities.

One approach to raising awareness has been identified by HREOC through the production of manuals, guidelines and other publications. These have included guides for producing Action Plans, and guidelines for compliance through accessible premises and towards an accessible Internet. HREOC's Frequently Asked Questions (FAQ) files on its web site are also very useful documents of information and advice.

The major community-wide approach to raising awareness has been through the development of Action Plans. An Action Plan is a strategy for changing those practices which might result in discrimination against people with disabilities. It helps to identify such practices and offers a program for change. The DDA provides that organisations may develop Action Plans to eliminate discriminatory practices and that they may be lodged with HREOC.

An Action Plan can help an organisation to:

A range or organisations in Australia have developed Action Plans. These include banks, telephone companies, government agencies, community organisations and universities.

An organisation which provides goods or services or which makes facilities available is deemed to be a service provider and may prepare and implement an Action Plan. An Action Plan must include the following provisions as a minimum. Any additional provisions must not be inconsistent with the minimum provisions.

A service provider may, at any time, amend its Action Plan. It may give a copy of its Action Plan, or amendments thereto, to the Disability Discrimination Commissioner. The Commissioner is to make Action Plans publicly available, and may sell them for a prescribed fee.

As well as being a tool for raising awareness, an Action Plan has the added benefit of counting positively rather than negatively for a service provider in its defence of a complaint lodged against it. However, compliance with an Action Plan, or an intent to do something under an Action Plan, is not a complete defence.

The DDA is not explicit about the content of an Action Plan, only its framework. Therefore it is often the process of developing and reviewing an Action Plan, which is more important than the details of its content. Nonetheless, some Action Plans have been very good; they have forged a new standard for access and equity for people with disabilities.

The Commonwealth Government has an important unit in its Family and Community Services Department known as the Office of Disability. One activity of the Office of Disability has been the development of the Commonwealth Disability Strategy launched in 1994. The Strategy’s purpose is to promote the Objects of the DDA, particularly with respect to Action Plans; and to give effect at national level to the United Nations Standard Rules on the Equalisation of Opportunities for Disabled Persons.

The Strategy provides a framework, over a ten year time domain, for Commonwealth Government Departments and Agencies to implement changes so that services, programs and facilities are accessible to people with disabilities. It was developed in consultation with people with disabilities, and its priorities reflected their major concerns. The Strategy is an important step by the Government towards realising the needs and aspirations of persons with disabilities, and the awareness-raising elements of the DDA are an integral component.

The Strategy identifies the importance of:

• each department and authority consulting with people with disabilities on program design, delivery and the effectiveness of equal opportunity measures; and
• each department and authority seeking equitable participation of representatives of groups of people with disabilities in government advisory and review processes."

Every two years, all Commonwealth departments, authorities and agencies are expected to report on their progress against the actions stated in the Strategy. A consolidated report is then tabled in the Parliament. The Strategy has recently been evaluated and a detailed report has just been published.

An important component of the Commonwealth Disability Strategy has been the requirement for all Commonwealth Departments and Agencies to develop and lodge DDA Action Plans with HREOC. Whilst not all of them have done so, many Departments and Agencies have developed good DDA Action Plans, heightening awareness and refining internal processes in the process. Action Plans have aided the Commonwealth Government to improve the accessibility of its mainstream services, programs and facilities for people with disabilities.

The Commonwealth Attorney General may introduce into the Parliament, Regulations under the DDA known as Disability Standards. Disability Standards may cover Employment, Education, Accommodation, Public Transport Services and Facilities, Accessible Premises, and the Administration of Commonwealth Government Laws and Programs.

A Disability Standard becomes the law. Therefore, it is unlawful to contravene a Disability Standard, whilst compliance with a Disability Standard is an absolute defence against a complaint. The purpose of a Standard is to confirm rights and clarify responsibilities. A Standard must provide certainty, whereas the DDA leaves much to be interpreted in the investigation or determination of a DDA complaint.

The development of a Standard under the DDA is akin to a collective bargaining process. A Standard is supposed to accurately reflect and elaborate on the DDA, neither writing it up by increasing its powers or writing it down by using narrow definitions. Still it is necessary for aggrieved persons to seek redress by lodging complaints. However, the existence of a well-known and well-written Standard should help in resolving complaints. It is intended that compliance with a Standard is a complete defence for a respondent, even though the action being complained about may be discriminatory. Therefore, with a Standard, in practice, some theoretical rights under the DDA are necessarily negotiated away.

Since late 1995 the Commonwealth Government has funded the so-called DDA Standards project. For most of that time the project has been convened and administered by Blind Citizens Australia. Its purpose is to facilitate community consultation in the development of DDA Standard and to channel community feedback to the bureaucrats and industry representatives involved in various Standards-making processes.

Standards development in Australia has been painfully slow.

I am a strong believer in Standards, and I believe that much has been achieved through increased awareness in their development. The complaints process is not always accessible, and particularly in the areas of Employment and Education, Standards would be much better. However, Standards are difficult to develop through community-wide negotiation and collective bargaining, using a consensus approach. As time goes by, whereas practitioners hope with optimism that the case law will write up the DDA by favourable judgments, realists know that in harsh economic times case law can also write down the DDA by narrow or unfavourable interpretations.

Most complaints are settled and do not go to hearing. Very often these settlements are not disclosed because confidentiality clauses are inserted. This is a major failing of the conciliation outcome approach, because the confidentiality clauses usually protect the respondent rather than the complainant. It means that there is not information sharing about the nature of the complaint and its resolution, and people often have to `reinvent the wheel` in having discrimination against them remedied.

In 1994 Mr Scott who is deaf lodged a complaint of discrimination against Telstra Corporation, Australia's national telephone carrier. At the time, Telstra was the only telecommunications carrier, except for competition in mobile telephony, and Telstra had traditionally managed everything associated with the telephone network, cabling into the home and the provision of telephone handsets.

Mr Scott complained that he could not use the telephone service because he did not have a TTY (Telephone Typewriter) for the deaf. It was not possible to conciliate the complaint. The complaint went to hearing and the HREOC Commissioner found that Telstra indeed had a case to answer. He found that Telstra should provide all deaf people, and those with speech impairments, who wanted one, with a TTY or with modem access to the telephone network.

Telstra claimed that this would be an Unjustifiable Hardship. The argument was not accepted by the Commissioner, who determined that a multi-billion dollar national company could afford to pay for a remedy costing a few million dollars.

An access to information complaint was lodged by Mr Bruce Maguire in June 1999 against the Sydney Organising Committee for the Olympic Games (SOCOG), for its failure to make the Olympic Games Ticket Book and Olympic Games Souvenir Program available in Braille. He also lodged a complaint over the inaccessibility of the SOCOG web site.

Mr Maguire gave SOCOG every opportunity to rectify the problem but to no avail. Blind Citizens Australia consequently applied for an interim determination, which is like an injunction, to prevent Mr Maguire from being disadvantaged in the ticket allocation process pending an investigation into the substantive issues by HREOC. SOCOG vigorously opposed the granting of the interim determination which was, however, granted by HREOC. SOCOG ignored the Commission's interim determination. Mr Maguire decided that instead of trying to enforce the interim determination in the Federal Court he would try to win on the substantive issue of whether unlawful discrimination had occurred.

Conciliation failed and SOCOG was generally obstructionist as Mr Maguire attempted to prepare his case. The final hearing was scheduled for 27-28 September and SOCOG must have spent thousands of dollars fighting Mr Maguire's complaint. Blind Citizens Australia handled the case until it was taken on by the Public Interest Advocacy Centre in NSW. The hearing was confined to the issue of the ticket book and separate dates have been scheduled for determination of Mr Maguire's related complaints about the unavailability in Braille of the Olympic Souvenir Program and the inaccessibility of SOCOG's Web Site.

Two days after the Hearing, on 30 September, Commissioner William Carter handed down his decision. He found that SOCOG had unlawfully discriminated against Mr Maguire in failing to provide him with Braille access to the Olympic ticket book. Commissioner Carter found that SOCOG directly discriminated against Mr Maguire, and stated that there was also a breach of indirect discrimination law. He ordered that Mr Maguire be assisted by SOCOG in the purchase of tickets in the second ticketing round, and implied that the ticket book should be made available to Mr Maguire in Braille. Commissioner Carter fully accepted the evidence brought by Mr Maguire and his witnesses, emphasising that Braille is paramount for blind people as our literacy medium, and totally discounted evidence brought by SOCOG: the comparative value of other alternative formats and media, the onerous cost of Braille production, the adequacy of the telephone help line for vision impaired persons, and the low value of the Olympics as a sporting event for blind spectators.

Blind Citizens Australia is delighted with the outcome of the Maguire case: a convincing victory for Braille confirmed by mostly positive media coverage and a high level of public interest.

In 1997 I, together with two other blind people, lodged a complaint against OASITO (Office of Asset Sales and It Outsourcing), the Commonwealth Government agency responsible for administration of the sell-off of government owned enterprises. The specific sale was one-third of Telstra Corporation. It was referred to as the Telstra-1 case.

We wanted the Share Offer documentation in accessible formats - Braille for me, on cassette or in electronic format for the others. We asserted that if the law requires that documentation be widely circulated, or if government policy dictates it, then surely we have a right to read and study the documents ourselves in our preferred formats. We wanted nothing more or less than what sighted people take for granted. We wanted HREOC to hold a public inquiry to explore the issues surrounding the accessibility of mass-distribution documents. HREOC decided not to hold the inquiry we wanted, but has proceeded towards settling the complaint.

The complaint was not settled. The OASITO lawyers advised OASITO against doing anything that might cause anyone to question that documents in accessible formats were not faithful reproductions of the print originals, causing the possibility of future litigation. The Australian Securities and Investments Commission saw no problems. We were stalled all along the way - we did not get the accessible documents and we could not get a written agreement.

Earlier this year along came Telstra-2, the sale of another 16.6% of Telstra. Would it start all over again? We still could not get OASITO to guarantee that the Share Offer documentation would be made available in Braille and in a range of accessible formats. Negotiations continued and, to its credit, OASITO investigated the feasibility of making documentation available in accessible formats. We were pleased that for Telstra-2 the Share Offer document was made available in Braille, audio cassette, computer disk and large print. Whilst this was very good progress, we still have not closed the original complaint, pending written confirmation that future Share Offer documents will be made available in Braille and other accessible formats.

This paper would be incomplete without some discussion of the important role of the community sector. Governments have a range of issues to address, imperatives to meet and pressures to respond to. Sometimes Governments set about reform, and at other times they focus on consolidation and more of the same.

The quest for social justice and for the affirmation of human rights must come from the community. By nature, Governments do not think much about people with disabilities, because the people making decision are rarely touched closely by disability. Politicians, advisers and senior bureaucrats are usually healthy and intelligent: they can see well, hear properly, walk unaided and think clearly. They are high achievers.

The push for social reform inevitably comes from the community - people saying `enough is enough` of the economic imperative. Therefore, the disability rights movement in any country is critically important to press for change.

As already stated, the Commonwealth Government has funded DDA Law Advocacy Services as specialist legal services to help in furthering the Objects of the DDA. Thee legal centres provide advocacy support for people with disabilities, formulate and lodge strategic complaints and raise awareness and expectations through community education.

There are also national peak disability organisations in Australia, such as Blind citizens Australia, which use the DDA to support their individual and systemic advocacy work. These organisations are vitally important, maintaining their separateness and autonomy as specialist disability advocacy and consultancy bodies. They come together through the National Caucus of Disability Consumer Organisations, a loose coalition of ten national specialist disability peak bodies.

Blind Citizens Australia is the united voice of blind and vision impaired Australians. Our mission is to achieve equity and equality by our empowerment, by promoting positive community attitudes, and by striving for high quality and accessible services which meet our needs. Our core activities are individual and systemic advocacy, information dissemination, peer support and advice or consultancy to Governments, Corporations and Community Organisations.

Blind Citizens Australia co-operates with other disability organisations and with blindness agencies, but maintains its status and authority as the national peak body speaking on behalf of people in Australia who are blind or vision impaired.

Blind Citizens Australia currently has a staff of eight permanent employees and a further five project staff, one of whom is located in Viet Nam. The cornerstone of our activity, for which we receive a Government grant of $100,000 (U.S.) per year is the National Advocacy Service, funded by the Commonwealth Office of Disability.

The National Advocacy Service consults with and represents the interests of people thoughout Australia who are blind or vision impaired. It enables people to assert their rights under Disability Discrimination, Social Security and other laws. Its objective is to enhance the equality of opportunity for people who are blind or who have other print disabilities by the removal of barriers to access by this group and through individual advocacy support.

The broad strategy of the National Advocacy Service is to use and promote tools, including the Commonwealth Disability Strategy and the DDA, to raise awareness, monitor change, and develop and promote policies on specific issues.

Discrimination is endemic in Australia, despite the best efforts of many individuals and organisations and the application of some good laws. But we feel that Australia compares favourably with many other countries that we know about. We use the motto "Changing What it Means to be Blind" and we are ever mindful that discrimination against any single one of us on the grounds of blindness is discrimination against all of us who are blind.

More details about the work of Blind Citizens Australia can be found on the Blind Citizens Australia Web site at www.bca.org.au. The Web site includes annual reports, other publications, our radio programs using `Real Audio` and links to other organisations and to relevant products and services.

The Australian Government passed the Disability Discrimination Act in 1992, whereupon it has operated alongside various State and Territory equal opportunity and anti-discrimination legislation. The DDA has tried to reduce discrimination against people with disabilities and to raise awareness about their individual needs and human rights. The DDA has worked quite well and some important advances can be identified.

The DDA is based on the lodgement and settlement of complaints, although Action Plans and Disability Standards are also important. The complaints process has worked well for some people with disabilities, with some individuals and organisations cleverly using individual complaints to achieve systemic change. This use of strategic complaints is a very powerful tool.

Action Plans have generally worked well - there can be as much benefit in awareness-raising in developing and reviewing Action Plans, as there is in their actual content. Similarly the processes associated with the development of Disability Standards have been beneficial in focusing attention on the key issues, facilitating community consultation and raising community awareness about pertinent issues.

On the other hand, progress towards the development of Disability Standards has been slow. There are good prospects only for a Transport Standard in the short term, and we hope that this can be achieved by the turn of the century.

Overall, progress has been good and Australia's DDA has been important to improve the well-being of people with disabilities. We hope that progress will continue and that our success will be an example and inspiration to Governments and people with disabilities in other countries.