ࡱ> 24/01g BYbjbjVV *r<r<4Q 888z|wt    o4$L$$$  1((($  ($((X}؂ @{?_&JG0wNe'؂؂zh<(lm!\_(:w$$$$8 X: Disability discrimination legislation in Australia from an international human rights perspective: History, achievements and prospects David Mason, Director Disability Rights policy 1992 2002 Human Rights and Equal Opportunity Commission, Australia Summary: International action on human rights of people with disabilities has provided some of the inspiration for action on disability discrimination and human rights issues within Australia but there remains much more detailed work to be done at a domestic level, drawing on experience in other countries. There has been significant progress on some issues, notably access to public transport, buildings and telecommunications, but less on others, in particular the employment area. Provision for legal rights to take action against discrimination has been essential, but has been most effective where linked with other strategic measures in particular development of detailed accessibility standards rather than relying only on litigation by individuals with disabilities to achieve social change. International action and domestic legislation on disability rights Disability is an inherent part of the human condition. Some of us are born with disabilities - for genetic reasons or other causes before birth, or because of premature delivery. More of us acquire disabilities during our lives, through illness or injury. If we live to old age, most of us will by then have one or more disabilities, such as impaired hearing or vision or mobility. So people with disabilities are part of the community in all parts of the world even where there are not the additional causes of disability that go with widespread poverty, or with war and the after effects of war. Inequality for people with disabilities - in access to opportunities, participation and enjoyment of human rights - also appears to be a worldwide phenomenon. Some of this involves prejudice or restrictive social attitudes about what people with disabilities can do. Much of it flows less directly from issues of attitude: at least until recently, failures to consider people with disabilities as part of the community have led to buildings, transport systems, telecommunications, education systems and many other parts of life being designed without access for people with disabilities being built in. But disability is not just a matter of attitudes or prejudice or labeling, so that equal rights could be achieved just by ceasing active discrimination. Equal enjoyment of human rights for many people with disabilities clearly requires additional measures of support and assistance, in some cases requiring quite substantial calls on social resources. International concern on human rights for people with disabilities has not, to date, resulted in specific binding international treaty action equivalent to the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, or the Convention on the Rights of the Child. Despite this, action at the international level has provided a major part of the inspiration and impetus for disability discrimination legislation in Australia - although, as will be seen later in this paper, comparative experience from other countries has had more to offer on the details of how to address disability discrimination than materials from the United Nations system. The International Year and action in the 1980s As in many other countries, the 1981 International Year for people with disabilities, and disability community activism stimulated by the international year, provided a pivotal point. In the early 1980s each of those of the Australian States (provincial or regional governments) which already had anti-discrimination legislation, covering grounds such as race and sex discrimination, added coverage of disability discrimination. 1981 also saw the passage of Australias Human Rights Commission Act which first established a national human rights commission. This Act defined the new Commissions jurisdiction 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 Persons. The Declaration of the Rights of Disabled Persons states that disabled persons have the inherent right to respect for human dignity; the same fundamental human rights as their fellow citizens; the right to a decent life, as normal and full as possible; the right to legal safeguards against abuse or any limitation of rights made necessary by the severity of a person's handicap, including regular review and the right of appeal; the right to any necessary treatment, rehabilitation, education, training and other services to develop their skills and capabilities to the maximum; the right to economic and social security; the right to productive employment; the right to have their needs considered in economic and social planning; the right to family life; the right to participate in all social activities; the right not to be subjected to more restrictive conditions of residence than necessary; the right to qualified legal assistance to protect their rights; and the right to protection against exploitation or discriminatory, abusive or degrading treatment. The Declaration on the Rights of "Mentally Retarded" Persons (the terminology referring to people with intellectual disabilities is now recognised as outdated) covers the same range of rights, and adds the right to a qualified guardian where this is necessary to protect a person's well-being or interests. The subject matter of these Declarations, then, includes but goes well beyond protection against discrimination. In Australia the Human Rights Commission Act (and the Human Rights and Equal Opportunity Commission Act which replaced it in 1986) incorporated these rights of people with disabilities into federal law, but only in a very indirect and incomplete way. These Acts only applied to acts or practices of the federal government, not (except in relation to employment discrimination) to matters within State government administration or the private sector. Also, they did not create any enforceable rights or duties only an Ombudsman-type 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 by Federal and State governments 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. What they did not do, however, was to create any enforceable right for people who require support, assistance or other services to receive it. There is considerable evidence in 2002 of continuing unmet need for disability services, support and assistance from personal assistance and care, to respite support for family carers, to interpreting services, to education aides, to assistive technology to make equal opportunity in education or employment a realistic possibility. It is essential, then, to recognize that discrimination law is only a part of a human rights agenda for people with disabilities, not a complete set of solutions, and that by itself it may not make significant impact on inequality in some areas of life. Towards national discrimination legislation Despite this, in the decade following the International Year, national legislation on disability discrimination was identified as a priority by NGO networks, official disability advisory bodies and by the human rights commission itself. In 1992 a national Disability Discrimination Act (DDA) was passed. The Human Rights and Equal Opportunity Commission (HREOC) played a leading role in development of this legislation, on the basis of its own research and pre-existing human rights responsibilities and in response to consultation with disability organisations nationally. In the Australian federal structure, the federal parliament lacks specific constitutional 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. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights require the rights which they recognize to be guaranteed to all persons without any discrimination. It is particularly significant that while the ICESCR allows for progressive implementation over time, it does not permit one section of society to have equal realization of rights deferred pending further economic development. In the development of the DDA the present author (among others) argued successfully that these provisions, 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. The lack of specific mention of disability in these instruments remains a concern, however, in achieving sufficient focus on people with a disability nationally and internationally both in recognition of the right to be protected by general provisions of human rights instruments, and in terms of the adequacy of those provisions to stimulate and guide measures needed to ensure equal enjoyment of human rights in practice for people with disabilities. (The more recent Convention on the Rights of the Child provides a welcome contrast in this respect, referring expressly to disability in its non-discrimination clause and in substantive articles on education and provision for special needs.) Standard Rules on disability In 1982 the United Nations General Assembly adopted a World Programme of Action Concerning Disabled Persons, outlining measures required to equalise opportunities open to people with disabilities. The Programme represented a significant advance in international consideration of disability in identifying full and equal participation in society as the primary goal, and in emphasising that the major barriers to achieving this goal in most cases relate to the way in which society responds or fails to respond to disability - rather than to the inherent nature of a person's disability. To encourage implementation of this Programme, the General Assembly proclaimed the period 1983 to 1992 as the United Nations Decade of Disability. As the Decade neared its end, it became clear that substantial barriers remained to equal participation by people with disabilities in all areas of social life, and to equal enjoyment of the human rights to which all people are entitled. A need for clearer and stronger standards was one response. By the time that Australias DDA was being developed, Standard Rules on the Equalization of Opportunities for Persons with Disabilities were progressing through the United Nations system and were adopted by the General Assembly late in 1993. These Standard Rules do not have treaty status or the level of monitoring machinery which the major human rights treaties have. Despite this, the Standard Rules are an extremely valuable document. Like the earlier Declarations, they make very clear that anti discrimination legislation is only a part of a human rights agenda for people with disabilities, covering issues of awareness-raising, medical care, rehabilitation, support services, income maintenance and social security, as well as discrimination and equal access issues in areas such as education, employment, and accessibility of buildings, communications and information. Unlike the Declarations drafted in the 1970s, the Standard Rules go on to provide significant guidance on the measures needed to achieve their objects. For example: States should ensure the provision of assistive devices and equipment, personal assistance and interpreter services, according to the needs of persons with disabilities, as important measures to achieve the equalization of opportunities. States should initiate measures to remove the obstacles to participation in the physical environment. Such measures should be to develop standards and guidelines and to consider enacting legislation to ensure accessibility to various areas in society, such as housing, buildings, public transport services and other means of transportation, streets and other outdoor environments. States should develop strategies to make information services and documentation accessible for different groups of persons with disabilities. States should recognize the principle of equal primary, secondary and tertiary educational opportunities for children, youth and adults with disabilities, in integrated settings. They should ensure that the education of persons with disabilities is an integral part of the educational system. States should actively support the integration of persons with disabilities into open employment. This active support could occur through a variety of measures, such as vocational training, incentive-oriented quota schemes, reserved or designated employment, loans or grants for small business, exclusive contracts or priority production rights, tax concessions, contract compliance or other technical or financial assistance to enterprises employing workers with disabilities. States should also encourage employers to make reasonable adjustments to accommodate persons with disabilities. Human rights issues beyond discrimination law This brief survey of the Standard Rules is enough to make clear that their implementation, in Australia at least, has to be regarded as unfinished business. They have not had any significant profile in government or public discussion, outside of specialist organizations and areas of government dealing specifically with disability although much the same point could also be made about other human rights instruments of greater legal status having more sophisticated reporting and monitoring machinery. 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. A renewed focus on HREOC roles on disability issues outside the DDA may well be desirable, but there is still a need to take into account limited jurisdiction, limited resources and limited legal powers. 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 HREOCs 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. Australias Disability Discrimination Act The DDA prohibits discrimination on the basis of disability in a range of areas of life, including employment, education, access to premises, and provision of goods and services. It was recognized that this prohibition would not, by itself, be sufficient to ensure that discrimination was eliminated or reduced. The legislation therefore provides 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 HREOC to initiate dealing with a matter at its own initiative as if a complaint had been made; development of more detailed standards on what is required for non-discriminatory access, including in employment, education, public transport services and access to premises; administrative granting of temporary exemptions from the legislation to provide a similar function to standards, but on a smaller scale of time and coverage, in managing and defining the transition from inaccessible to accessible systems and facilities; voluntary development of action plans by service providers to achieve the objects of the legislation; promotion of awareness of and compliance with the legislation by the HREOC Prior experience with open ended discrimination provisions in Australia, the United States, and Canada showed that reliance on open ended discrimination provisions alone, or relying only on complaints by individuals with disabilities, would be particularly ineffective in achieving broad progress towards equality in the disability area. Australias first Disability Discrimination Commissioner, Elizabeth Hastings, wrote at the end of her term in 1997: It has been important to recognise that the object really is the elimination of discrimination, not something more modest and manageable like providing remedies for a few complainants. I do not dismiss the importance of effective provision for complaints of discrimination: individual or representative remedy is a significant aspect of our anti-discrimination law. My point is, however, that much of such success as has been had under Australian disability discrimination law has come from the recognition and use of complaints as a driving force for other, structural, measures rather than resolution of individual complaints being regarded as the major end, or effective in itself. Implementation and achievements The record of achievements from 1993 on 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. Much of this has been achieved through linkage of the provision for legal remedies for complaints with other mechanisms and strategic approaches standards development, temporary exemptions, and conduct of public inquiries in particular. 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. Where there has been less success in linking complaints with other and broader strategic approaches, there has been more concern expressed regarding limited effectiveness of the Disability Discrimination Act in achieving its overall aims. This applies regarding employment in particular. Employment discrimination Access to employment opportunities is clearly a very important part of access to economic and social participation and opportunity more generally for people with disabilities. A major part of the initial stimulus for introduction of national disability discrimination legislation was as part of a strategy to improve employment participation for people with disabilities, and incidentally to reduce rates of dependence on the social security system. There is not much evidence however that this strategy has yet succeeded. Rates of unemployment and underemployment among people with disabilities remain much higher than for people without a disability. More complaints are received on employment issues than any other area under the DDA, and a high proportion of these complaints have been resolved by conciliation. However, most cases are resolved on an individualized basis and have not contributed greatly to setting of precedents or broad policy approaches by employers. There is scope in the Disability Discrimination Act for development of standards on employment and considerable time and effort has been spent, by the HREOC, other government agencies, and by representatives of employers, trade unions and people with disabilities, in attempting to develop such standards. However, it has not been possible to reach agreement on standards to introduce. One problem has been in finding a balance between standards which are too specific to be workable in all employment situations and standards which are too general to give much more guidance than the existing open ended discrimination provisions. Although the most recently produced draft of standards in this area (issued for comment in 1998 and still available on the Commission web site) did not specify outcomes (such as when does a sign language interpreter have to be provided or what restrictions are permissible on using machinery if a person has epilepsy or what adaptive equipment should be provided for a blind person), they would have assisted by at least making the principles clearer. In particular the draft Standards sought to make clearer that the duty not to discriminate on the basis of disability includes a positive duty to make reasonable adjustments to accommodate requirements which a person has because of disability. If the Disability Discrimination Act were being drafted now we would certainly seek to have more explicit provision to this effect included in the legislation itself. However, in the United States, where slightly more prescriptive and detailed regulatory requirements than our draft employment standards have been in place for years now under the Americans with Disabilities Act, the evidence is that overall employment outcomes for people with disabilities have not improved significantly, despite or perhaps because of the amount of litigation that has been conducted about the employment provisions of that legislation. Equal opportunity in work is not only a matter of attitudes and practice in the workplace itself. It depends on equality in the pieces that work is made up of - skills formation, accessible communications and information systems, accessible premises, accessible transport and so on. So, while we may not have found an effective direct approach to equal opportunity in employment, we have taken an indirect approach focusing on issues of whether people can get to work, whether they can get into the building, whether they can use information and communications technologies and whether they can acquire skills and training needed for employment. Development by employers of more specific strategies to achieve equal employment opportunity is also likely to be needed. However, the Disability Discrimination Act does not contain any explicit requirement even for larger or public sector employers to develop, implement and report on positive strategies to achieve equal opportunity for people with disabilities. The need for this kind of affirmative action has been given legislative effect in Australia regarding equal opportunity for women but not for people with disabilities (including, of course, women with disabilities in their capacity as people with disabilities). Commissioners and senior staff have sought to encourage employers to consider applying for temporary exemptions under the legislation in return for adoption of policies and programs to achieve greater equality of opportunity. Even a crude measure such as an agreed quota for increasing representation of people with disabilities in the workplace (over a five year period for example) might possibly be more effective than theoretically sophisticated but practically ineffective discrimination laws and policies taking into account that having people with disabilities actually in the workplace is more likely to improve awareness of the needs and capabilities of people with disabilities than anything else, and more likely to have a positive impact on attitudes than litigation on complex points of discrimination law. To date however there has been no definite response to suggestions to employers for measures on these lines. We also lack any equivalent of the Job Accommodation Network in the United States, which provides practical information and advice to employers on equipment or other modifications necessary to accommodate a persons disability in the workplace. Access to premises In addition to being a barrier to employment, physical access continues to be a constant and pervasive barrier for people with disabilities in many aspects of their life. 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. These have included motels, hotels, shopping centres, betting shops, post offices, civic centres, cinemas, entertainment centres, sports venues, restaurants and cafes, and swimming pools. Summaries of many of these outcomes can be found on the Commission's web site. Some of these outcomes have been significant in themselves for large numbers of people. Some have led to larger scale changes for the respondent organisation for example the complaint about accessibility of a new railway station to serve Newcastle University ensured that the Sydney Airport and Olympic Park stations would also be accessible and contributed to the development of national standards on accessible public transport, discussed later in this paper. However, to make any 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 or even millions. Access to premises is an area which shows clearly the need for more detailed standards to translate general concepts of discrimination into terms giving more specific indications of what is required , which organisations with obligations under the Act can therefore more readily understand, comply with and be held accountable for complying with. It is clearly impossible to expect all buildings to be designed to be equally accessible and useable by people with a disability, simply by reference to the terms of a general indirect discrimination provision. The same applies for an equally accessible telecommunications or transport system. The greatest impact of disability discrimination complaints about access to premises has been in providing the impetus for upgrading the access provisions of the mainstream Building Code of Australia by the Australian Building Codes Board. The ability to negotiate standards has been crucial in engaging the mainstream building regulator in upgrading the access provisions of its own code - since in return we are able to offer endorsement of that code as a standard for discrimination law purposes. This has been a very long running process but a draft standard in this area under the Disability Discrimination Act may be available in 2002 for authorisation in 2003. At that point, we hope that accessibility in new or redeveloped buildings will finally become a matter of routine (other than in the most exceptional cases), and there will be an orderly process developed for upgrading accessibility of Australias building stock. Telecommunications 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 for Australia. 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 - but.discussions are continuing between HREOC, industry, consumers and telecommunications regulators on improvement of accessibility across the full range of telecommunications services. Some of these discussions have been assisted by complaints under the legislation. In particular, complaints regarding access to mobile phones for people who use hearing aids were investigated by a public and open process. This allowed participation by people beyond the immediate parties to the complaint who had information or views to contribute. It also created a degree of public exposure for the issue. In some cases this can be useful in achieving resolution of an issue (rather than non-compliance being in effect rewarded by being treated privately). The process in this case led to each of the major service providers adopting schemes to improve access and consumer information. This sort of inquiry places heavy emphasis on use of the internet to disseminate and gather information more quickly and cheaply. The more expensive and logistically demanding method of face to face hearings is only used much more sparingly, for example once internet based submissions and discussion have identified issues, options and the key parties with information and ideas to contribute. Captioning issues The approach of opening up the complaint investigation process is not the normal approach for Australian discrimination agencies, which have generally applied a confidential approach both to investigation and to attempted conciliation of complaints. Until recently an open investigation approach had only been applied in the disability discrimination area, and to a small number of complaints. (Recently a call for public submissions was however issued in an inquiry into a complaint under the HREOC Act regarding detention conditions for asylum seekers.) 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. Banking standards Not all inquiries or all industry/consumer negotiations convened by HREOC have to flow directly from complaints under the Disability Discrimination Act. 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 as well as for older people. Out of that inquiry the Commission secured agreement by the Australian Bankers Association to voluntarily develop a series of industry accessibility standards, on internet banking, phone banking, EFTPOS facilities and automatic teller machines. Those standards, developed in consultation with community representatives, were due to be launched in March 2002. Education What has been achieved through the Disability Discrimination Act is probably more sharply disputed in the education area than any other. Experience on the basis of complaint statistics is quite encouraging. Taking the year 2000/01 as an example, 31 education complaints were made under the DDA. Setting aside complaints which were found to be lacking in substance, 83% of education complaints were resolved by conciliation; and of those 56% were finalised in less than 3 months from receipt and only 1 took more than 6 months to resolve. On those figures apart from some suspicion about why we only saw 31 education discrimination cases come in during a year - it would seem that the DDA is working extremely well on education issues. But compare these remarks from a paper published in 1997 by peak disability organisations: The current DDA, while helpful, has not ensured that discrimination in education does not occur with large or small systems, particularly in the area of inclusion of students with an intellectual disability, learning disability, attention deficit hyperactivity disorder, other behavioural disorders and psychiatric disabilities. Indeed it seems that it is considered to be a failure by families trying to gain inclusive education for their son or daughter. Most school systems appear to have a high level policy commitment to equity but this commitment breaks down the closer it gets to the individual. Most seem unable to cope with the thought of large numbers of people with disabilities entering the system. The conclusions to draw seem to be 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: but the scale of systemic change beyond individual outcomes being achieved through complaints is questionable. 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. Public transport Access to public transport has been the most 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 for standards, exemptions and action plans. 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). The process towards final legal ratification of these Standards has been extremely protracted and even now the process is still not quite complete. We hope to see the Standards in force during 2002. Although this is about five years slower than anyone hoped, so that the technical provisions of the Standards already are dated in some respects and need review, many public transport operators have been applying the draft Standards in effect for several years. Most public sector bus fleets, for example, are now close to achieving the first five year target in the standards even before the Standards actually commence. Urban rail services, while not perfect, will similarly be well ahead of the Standards targets so long as the current pace of improvement keeps up. 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 focus. In several instances (South Australia and Western Australias public transport systems and the tram system in Melbourne) the key to forward movement, after a stimulus provided by complaints, has been the ability of the Commission to grant exemptions. Exemptions were granted to transport authorities while, and on condition that, they implement voluntary Action Plans under the Disability Discrimination Act, which they had developed in consultation with the disability community. Experience shows that businesses are frequently prepared to do more in exchange for certainty than they could be compelled to do by the threat of complaints. We have had some criticism from disability community organisations and from State anti-discrimination authorities for our preparedness to use the exemption mechanism, but experience has shown that we have clearly been right if the objective is recognised as being systemic change, not individual complaint rights for their own sake. 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 As already indicated, setting of detailed standards on accessibility to supplement general anti-discrimination requirements has been identified as a key requirement in the disability area. It is clearly a concern then that although several standards development processes are well advanced, almost ten years since the Disability Discrimination Act was passed no standards are yet in force. Although the legislation permits setting of standards it does not require that this happen or that it happen within a set timetable. This contrasts with the position in the United States where definite, and much shorter, timetables were set by the Americans with Disabilities Act and by related provisions of other laws. Regulations had to be made, by particular dates and after public consultation, by relevant sectoral regulators - the Access Board for buildings, the Equal Employment Opportunity Commission, the Secretary of State for Transportation for transport issues, and the Federal Communications Commission for telecommunications and broadcasting issues. The terms of Australias Disability Discrimination Act leave the Attorney-General with all standards making authority. There is no legislative provision even requiring consultation in standards making, except with State governments. On principle, the U.S. approach appears preferable, making clear that other sections of society and government have responsibility for achieving movement towards accessibility and equality in their own areas, rather than discrimination being purely an issue for a specialist discrimination agency or for the justice area of government. In practice, processes under the DDA have been much more like the US model than would appear from the legislation alone. Each standards process has been run in practice by a sector specific body (at the request of or in cooperation with the Attorney General) and each has involved extensive consultation, both in development of drafts and on drafts once developed. However, progress towards standard setting has had to be achieved by slow negotiations (and to some extent by the threat of complaints) without the backing of a definite legislative timetable. 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. Although some progress has been made in areas such as telecommunications, television captioning and banking accessibility either through voluntary development of industry codes or setting of standards by other regulators, an explicit provision in the Disability Discrimination Act for standards to be made in these areas (which could take the form of endorsing these other codes or standards as sufficient for DDA compliance) would have assisted in making rights and responsibilities clearer and potentially in achieving broader and faster progress. Lack of positive compliance certification power As already noted, the Commission has attempted on several occasions to encourage industry organisations to submit applications for exemption in return for their own policies and procedures to achieve the objects of the legislation. One of the reasons for very limited take up of this concept so far may be the negative public impression that could be given by applying for an exemption even though the intention would be not to escape responsibility for compliance but actually to deliver better outcomes than the legislation alone would achieve. A positive power to certify compliance plans or codes rather than an exemption power might be more readily marketable. The legislation does provide for organisations to submit voluntary action plans to achieve movement towards equal accessibility of services. Only a little over 200 organisations however have submitted action plans to date. The legislation also provides only very general indications of what a plan should contain, so that plans submitted have varied from those with specific commitments and mechanisms to ensure implementation to those of more limited value. The position is very different to that with reporting on affirmative action measures 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. We have however sought to have bodies developing accessibility standards accept some responsibility for monitoring their implementation, rather than this role falling only on the complaint process and on HREOCs role of reporting to the Attorney-General on implementation of standards a role which exists in the legislation but is not accompanied by any specific or substantial resources. More substantial reporting and monitoring capacity would be a significant addition to the effectiveness of disability discrimination legislation in ensuring broad systemic outcomes, as an addition to or possibly even in partial substitution for existing resources used in dealing with complaints through anti discrimination agencies and the legal system. Lack of HREOC enforcement or complaint initiation power The present structure relies heavily on individual complaints as the enforcement mechanism for the legislation. The Commission makes considerable efforts to ensure that the process is as accessible and user-friendly as possible. However, effective strategic use of complaints by the disability community to achieve large scale change has been relatively limited, compared to use by individuals to resolve individualised issues in particular in employment. As noted earlier in this paper 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. This still requires, however, that complaints be lodged by someone in the first place. There seems at present to be a gap in the enforcement strategy for the legislation which requires a complaint or legal enforcement role for a specialist public authority. When the Disability Discrimination Act was introduced there was provision for a specialist Disability Discrimination Commissioner who would have power among other things to pursue discrimination issues as if a complaint had been lodged. However, since 1997 the Government has not been willing to appoint a Commissioner specifically for this position and other members of the Commission have acted in this position in addition to their principal duties. The self-start power as originally drafted had some technical defects and 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. Limited impact for some disability groups Finally, 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 and reinforces the need for alternative strategies including a more proactive role for HREOC as discussed above. It is also true that our policy focus has been to concentrate first on issues where the broadest gains can be readily identified and achieved, which have tended to be in areas of physical and communications accessibility rather than in more subtle or diffuse forms of discrimination. Delays beyond what was initially hoped for in finishing these accessibility issues at least to the extent of getting an initial round of standard setting complete have postponed the shift in focus which we always intended would follow onto still more difficult agenda items. Experience with race and sex discrimination, however, shows that there will still be plenty of challenging issues to deal with in disability discrimination , and beyond that in wider issues of human rights, even once (or if) we reach the point where the specific additional basket of accessibility issues presented by disability might be regarded as satisfactorily resolved. Mechanisms for eliminating discrimination When the DDA was being developed it was recognized that simply passing a law to prohibit discrimination would not be sufficient to ensure that discrimination was eliminated or reduced. The effectiveness of any anti-discrimination law depends on the ability of people and organizations to use it. So 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 made; 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. 2.1 Complaints There have been over 5500 complaints lodged under the DDA. Not all of these complaints have been successful. The Commission has been rigorous in applying its power to decide not to deal with complaints which are outside its responsibilities, do not raise a substantial issue of unlawful discrimination under the DDA or, in its view, could be better dealt with by some other statutory authority. Of those complaints which have been dealt with, a large majority have been settled by conciliation (although precise figures are difficult to give for the whole period due to changes in data collection methods). Summaries of selected complaint outcomes are presented later in this publication. While settlements of complaints through conciliation are generally made without admission of liability, and therefore are not legal precedents, these summaries do show some of the results being achieved by the DDA in practice. (Further details of conciliated settlements, Commission decisions and court decisions under the DDA are available on the Commission's web site.) 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. 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. Some of these concerns can be, and are being, met by continually improving the quality of the service. When the Disability Discrimination Act was introduced there was provision for the Commission to pursue discrimination issues as if a complaint had been lodged. This power was seen as highly important by disability community organisations, partly because of their own limited resources. However, the "self-start" power as originally drafted had some technical defects which meant that in practice it went unused. It was removed when the machinery provisions of the DDA and other federal anti-discrimination legislation were revised in 1999. In any future revision of the legislation it would be timely to consider how an enforcement role such as this could be reinstituted. When the DDA was first passed the Human Rights and Equal Opportunity Commission acted as a tribunal to make decisions in cases where conciliated settlement could not be reached, with the courts becoming involved only if these decisions were not complied with. However, this power was removed in 2000 for constitutional reasons. Concerns were expressed by many disability organizations that the loss of the Commission's specialist tribunal role, and the potential for costs to be awarded against unsuccessful complainants in court, would in effect mean the end of the DDA as an effective tool for pursuing rights. However, no general trend has been seen so far which suggests the courts are taking a narrower approach to interpreting the DDA than the Commission did as a tribunal Although there have been a small number of cases where unsuccessful complainants have had a costs order made against them, to this point there does not appear to have been a negative impact on complaints going forward. Nor has there been an increase in the rate of respondents refusing to settle cases and forcing complainants to risk the outcome in court. 2.2 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 Commission becomes aware of proceedings in which it may intervene through being notified by the parties, the court itself or through maintaining a watching brief on relevant matters that are before the courts. All requests or recommendations for the Commission to intervene in proceedings are put to the Commission for its consideration. 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 the Commissioner had indicated an interest in joining the proceedings the matter has settled before going to hearing. The Commissioner is interested in working more closely with disability community organisations in exercising this function, and during 2003 will be seeking suggestions for criteria and priorities to be applied in deciding in which cases to become involved. 2.3 Standards 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. The Attorney-General has given strong support to the standards development process, including providing resources to a disability community Standards Project to facilitate community input. However, progress with standards has been slower than hoped. The first disability standard to come into force, on accessible public transport, was approved by the Parliament slightly over ten years after the Act itself was passed. At the Human Rights Awards ceremony in December 2002, Commissioner Ozdowski presented an award marking the DDA tenth anniversary to the community representatives in the transport standards process (pictured above). He said: The accessible public transport standards stand out among other achievements in implementing the Disability Discrimination Act because of the scale of the changes involved, guiding billions of dollars of investment; because of the benefits to be gained by the whole community including people with disabilities; because of the degree of implementation the standards have already achieved in practice around Australia; and because of the positive precedent they have set for achieving co-operative solutions in other areas of work under the Disability Discrimination Act. A standard on education has been drafted, but awaits a decision by the Ministerial Council on Employment, Education, Training and Youth Affairs. Work has been under way for several years on a standard on access to premises in conjunction with the Australian Building Codes Board and representatives from interested groups. Current estimates are that completion of this work will take at least another year. Draft employment standards were produced in 1998 but further work has been postponed because of a lack of consensus on whether to proceed with regulatory standards or only with guidelines. Some of the delay in producing standards results from the approach adopted, and supported by the Commission, of developing standards with the widest possible consensus, including relevant industry bodies, the disability community and Federal and State governments. Some delays (in particular in the adoption of the public transport standards) have arisen from the unanticipated complexity of Regulation Impact Statement requirements which necessitate a rigorous cost/benefit analysis of the impact of the proposals. There appears to be no easy way to accelerate the process of standards development. An issue for possible future consideration, however, is that setting of standards is only allowed in some of the areas covered by the DDA. Extension of the provision for making of standards to other areas would permit additional standards to be made if this was decided to be appropriate. 2.4 Temporary exemptions The temporary exemption 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 DDA. 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 limited take up of the exemption mechanism so far may reflect a concern that applying for an exemption could give a negative impression, even though the intention is not to escape responsibility for compliance, but actually to deliver better outcomes in a planned way. It may be that a positive power to certify compliance plans or codes as complying with the DDA should be considered for the future. 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. The Commission has put considerable effort into promoting the development of Action Plans. However, the number of organisations which have lodged Action Plans remains small in comparison to the number of organisations which could do so. As at January 2003, 253 plans had been lodged with the Commission. The plans are from 29 business enterprises, 25 non-government organisations, 31 Commonwealth government departments, 36 State and Territory government departments, 91 local government organisations and 42 education providers. The register of Action Plans, and those plans provided electronically to the Commission, are available on the Commission's website. A number of organisations have also submitted revised plans or implementation reports. In some cases Action Plans have been developed as part of settlement of a complaint. 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. 2.6 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. The campaign poster is featured on the cover of this publication. 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. Almost 50,000 page views per month are now registered for the disability rights section of the Commission's web site. The Commissioner and Commission staff also promote awareness and compliance through participation in many formal and informal educational events, conferences, public forums, workshops and consultations. 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 Legal Services. 2.7 Public inquiries 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. 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. 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. Medicare Benefits for Psychiatric Services In 1996 regulations were introduced that meant the Medicare rebate for psychiatric consultations was halved after a patient's 50th visit in any one year. The regulations were intended to address over-servicing but concerns were expressed about their impact on people with high support needs. The Commission investigated whether the regulations were inconsistent with or contrary to the objects of the Disability Discrimination Act. The results of this examination were reported to the Attorney-General in November 1997. The restrictions which were introduced in the 1996 Budget on Medicare benefits in relation to certain psychiatric services were found to have a discriminatory impact on people with a psychiatric disability. However, as a result of modifications to the regulations following further consultations, the Commission concluded that the regulations were no longer inconsistent with the objects of the DDA. The restrictions which remained were comparable to those which apply to Medicare benefits in relation to a range of other areas of medical treatment, rather than discriminatorily singling out psychiatric treatment and psychiatric patients. It appears that the Commission's involvement assisted in achieving these improvements. Public transport: Sydney Cityrail station access In July 1999 the Commission received a representative complaint under the DDA on behalf of people who use wheelchairs regarding access to Summer Hill railway station. It sought implementation of accessibility at that station in 1999-2000. After issuing a public notice of inquiry and taking submissions, Acting Disability Discrimination Commissioner Susan Halliday exercised the power to decline to deal further with the complaint. (Since April 2000 this power is vested in the Commission President). She found the complaint was adequately remedied by an acceptable overall rate of achievement of accessibility of stations, whether or not the particular station complained about had priority on the list of stations to be made accessible. 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. Electoral access Barriers preventing people with disabilities exercising their right to vote independently and in secret have less day to day impact than barriers in some other areas of life. However, equal electoral access clearly has great significance for equality of citizenship. A number of complaints have been conciliated with agreement to improve electoral access in particular locations. In an effort to secure broader progress, a public inquiry into an individual complaint regarding a range of barriers to accessibility in local government elections was conducted in 1999. This led to agreement in 2000 by the Australian Electoral Council - of which all Electoral Commissions are members - to establish a committee, involving the Commission and community representation, to develop a standard definition for access, and set benchmarks for its achievement over a period of years. Formal progress through this committee process has not been as effective as anticipated. However, electoral authorities have continued to pursue improved accessibility in practice, including trials for electronic voting. E-commerce 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. The report on this reference was tabled in Federal Parliament by the Attorney-General in June 2000. The report welcomed advances made by internet service providers, banks and the Federal Government in combating serious access problems faced by older Australians and people with disabilities. The inquiry found that some older people and people with disabilities face a number of problems in using financial services in bill-paying and phone-based facilities as well as barriers to accessing the world-wide web. 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. Accessible taxis The Commission conducted a public inquiry on aspects of wheelchair accessible taxi services during the second half of 2001. Over 90 submissions were received from industry, government and the disability community. Public hearings were held in western Sydney, Melbourne, Newcastle and Perth. A final report was released in March 2002. The Inquiry found evidence that response times were significantly longer for passengers requiring wheelchair accessible taxis than other passengers making taxi bookings in some parts of Australia. It was not possible to judge conclusively whether numbers of accessible vehicles in taxi fleets overall need to increase to achieve equitable service, because most jurisdictions did not have, or had only very recently established, adequate performance monitoring for accessible taxis. Discussions with transport regulators on improved performance monitoring are continuing. 2.8 Other research and policy work Sterilisation Since before the passage of the DDA the Commission has had a strong interest in the issue of people with disabilities being unnecessarily or unlawfully subjected to sterilising surgery. It has sought to promote appropriate safeguards and provision of alternatives to families. Following the publication of a commissioned report, Sterilisation of Girls and Young Women in Australia in 1997, the Commission has held meetings with the Department of Health and Family Services and the Attorney-General's Department to discuss strategies to address the problem of unlawful sterilisations. In 1998 the Commission negotiated changes to the Medicare Benefits Schedule book. This included a note attached to the fee schedule for relevant procedures reminding practitioners that, unless authorised by the Family Court (or in some States an authorised Tribunal or Board), it is unlawful to sterilise a person under eighteen unless the procedure is a by-product of surgery appropriately carried out to treat malfunction or disease. The note also reminds practitioners of the role of the Family Court in providing authorisation. In 2001 a follow up report to the 1997 report on these issues was released, and in 2002 the advocacy organisation Women With Disabilities Australia issued their own report. Discussions with the Attorney-Generals Department have continued on appropriate education strategies and legal reform in this area. Accommodation and abuse The Commission has long been concerned with the need for more effective measures of protection and remedy against abuse of people with disabilities in institutional settings, and measures to ensure that people with a disability have accommodation options consistent with Australia's human rights commitments. The Commission conducted substantial background research in this area in 1997. This work did not identify any options under the DDA likely to be more effective than the continued pursuit of available mechanisms under other laws. However, this is an issue where further attention by the Commission may be required. Mental health projects The Commission conducted a small program of consultations in the mental health sector in mid-1998 to identify areas where the Commission could best make a contribution with modest levels of resources currently available. The first project emerging from these consultations, a discussion paper on 'living wills' or advance directives, was issued for public comment in late 1998. A range of interesting and important submissions is available with the discussion paper on the Commission's internet site. The Commission has not had the resources for some time to follow up this work. However, Commissioner Ozdowski hopes to conduct further research in the psychiatric disability area commencing in 2003. Sufficiency of protection The existing general human rights instruments can be accepted as being legally applicable to people with disabilities. However, this legal applicability of existing instruments does not mean that they are adequate for promotion or guidance of implementation efforts. The existing general human rights instruments can be accepted as being legally applicable to people with disabilities. Instruments which require rights to be respected and ensured to all persons without any discrimination (as the human rights Covenants do) clearly require as a matter of law that these rights be respected and ensured regarding people with disabilities, since people with disabilities are included in the class all persons and disability discrimination is within the class any discrimination. Further, it is generally accepted that the reference to discrimination on the basis of any other status at the end of the listed grounds in the non-discrimination clause of the human rights Covenants includes disability. (This view was accepted by the Government in drafting the DDA to have wide application relying on the external affairs power, based on treaty obligations as well as more general evidence of international concern.) Similarly, under the Convention on the Elimination of All Forms of Racial Discrimination any distinction, exclusion, restriction or preference based on race must include racial discrimination even where it is differentially applied to or experienced by persons who also have a disability. (To take an extreme case, when in Nazi death camps Jewish inmates who had become unable to work were selected first for death, they remained victims of racial discrimination rather than being victims of disability discrimination alone.) For the purposes of the Convention on the Elimination of All Forms of Discrimination Against Women, any distinction, exclusion or restriction made on the basis of sex likewise must include sex discrimination which is applied only or differentially to women who also have a disability (so that for example non-therapeutic sterilising surgery on women with intellectual disabilities presents sex discrimination as well as disability discrimination issues). However, this legal applicability of existing instruments does not mean that they are adequate for promotion or guidance of implementation efforts. Disability is not even mentioned explicitly in most instruments. Only the Convention on the Rights of the Child among the major human rights treaties even refers to disability. As indicated by the survey completed in 2002 for the High Commissioner for Human Rights (available at  HYPERLINK "http://www.unhchr.ch/html/menu6/2/disability.doc" http://www.unhchr.ch/html/menu6/2/disability.doc ) , this invisibility of disability is reflected in the fact that many country reports under human rights treaties fail to deal with disability at all or in relation to most articles. The position of people with disabilities in this respect is less adequate in this respect than that of women or people subjected to racial discrimination prior to the development of the CEDAW and CERD conventions, since the Universal Declaration and the succeeding Covenants did refer to the rights recognised therein being secured without discrimination on grounds of sex or race. The major human rights instruments fail to provide any guidance on issues where additional measures or adaptations are required to secure the enjoyment of a general right for people with disabilities. As noted in the survey for the High Commissioner for Human Rights, this may be a particularly serious omission in the area of civil and political rights where there is a tendency to think of rights as purely negative or liberty rights, requiring governments only to refrain from active abuses rather than to take positive measures to ensue rights are equally and effectively enjoyed. Examples of measures needed but not specified or referred to expressly include measures to ensure the rights of people with intellectual disabilities in dealing with the justice system (ICCPR Article 14); measures to ensure people with sensory disabilities effective and equal enjoyment of the rights to freedom of information and expression (ICCPR Article 19); and measures to ensure accessibility of electoral processes (ICCPR Article 25). These are issues which are clearly legally within the scope of existing instruments but which may be overlooked because of the lack of reference in the instruments to disability or to the issues disability presents. Some major human rights issues for people with disabilities require substantial processes of interpretation or implication to be fitted within rights covered by the existing human rights treaty framework, or may be outside the scope of current treaty law, although covered by other expressions of international concern. This may be illustrated by reference to major issues which are covered by and have arisen under Australias Disability Discrimination Act. Sections 15 to 21 of the DDA dealing with employment and related matters (and sections 35 and 36 on harassment in employment) can be regarded as supported by the Discrimination (Employment and Occupation) Convention as it applies to Australia, including the declaration by Australia of impairment and disability as additional grounds of discrimination covered from 1 January 1990. For nations which have not made the same declaration, it is necessary to refer to the International Covenant on Economic, Social and Cultural Rights provision on employment and the non-discrimination clause of this Covenant, which as noted does not refer to disability although legally can be viewed as applying to disability. Section 22 of the DDA, on education and sections 37 and 38 on harassment in education, are supported by reference to the International Covenant on Economic, Social and Cultural Rights, article 13 of which recognises the right to education, and Article 2.2 of which requires that the rights recognised be guaranteed without discrimination "of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status". For section 23 on access to premises it is less clear that there is support from binding treaty obligations rather than only from non-binding expressions of international concern including those in the Standard Rules for the Equalisation of Opportunities for People with Disabilities. It might be argued that the right to an adequate standard of living recognised in the Covenant on Economic Social and Cultural Rights carries with it a right to have access to at least some premises for purposes of employment and access to goods and services, but it is less clear that this right would support a right to have equal access to all the same premises open to other members of the public. That is, it is not clear that the existing binding treaties would be effective against a system of apartheid against people with disabilities imposing segregation in access to public places even a de jure system rather than the de facto segregation which occurs in many cases because of inaccessible buildings. Section 24 of the DDA on access to goods services and facilities could find more substantial support in the right to an adequate standard of living. Again, however, it is not clear that this right in itself is sufficient to require non-segregated access rather than permitting separate but equal facilities. Further, notwithstanding the non-discrimination clause of the Covenant on Economic Social and Cultural Rights, once an adequate standard of living is assured this may still be inferior to the standard of living enjoyed by other members of the community. Not all of the goods services and facilities available to the community would necessarily be recognised as essential to an adequate standard of living. To take a specific example covered by section 24, accessibility of public transport is obviously a major issue to people with disabilities and has been the subject of major action by Australian governments and industry under the DDA. It is not an issue however referred to directly in the binding human rights treaties. DDA section 25 regarding accommodation finds more specific support in Article 11 of the International Covenant on Economic, Social and Cultural Rights which includes recognition of the right to adequate housing. Although the lack of specification of what housing may be considered adequate is a significant limitation, this article read in conjunction with the non-discrimination clause may be useful in addressing discrimination in the types of housing available for people with disabilities. It is less clearly applicable however to other forms of accommodation such as hotel or holiday accommodation or to emergency accommodation. DDA section 26 regarding discrimination in disposition of land may be supported, at least in part, by Article 26 of the International Covenant on Civil and Political Rights (on the precedent of United States jurisprudence regarding the comparable provision in the US Constitution regarding the equal protection of the laws) - to the extent that any discrimination is contained in legally enforceable instruments or otherwise involves action by government or the legal system. However, it is harder to find a treaty law basis for DDA section 27, regarding clubs and incorporated associations, and section 28 regarding sport. In the recent case of Soulitopoulos v LaTrobe University Liberal Club, support for the clubs and associations provision of the DDA was found rather in non-binding expressions of international concern. This brief survey indicates that the binding treaty framework on human rights has some gaps even as far as providing a legal basis for discrimination laws is concerned. Further, it is obvious that discrimination law and the DDA in particular does not exhaust all human rights issues for people with disabilities. Those documents which do address disability specifically and in detail (in particular the very valuable Standard Rules and the General Comments which some treaty monitoring bodies have now begun to publish addressing disability issues) lack the legal authority and profile of conventional law proper. Reporting and monitoring mechanisms Problems for effectiveness of reporting and monitoring processes in relation to disability flow from the limitations identified above regarding the instruments by reference to which reporting is conducted. 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. In practice this means that few States appear to be reporting systematically on the disability dimensions of human rights issues and monitoring bodies are not building and sharing expertise on disability issues.     2a ! 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