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Australian Journal of Human Rights |
Disability standards: the challenge of achieving compliance with the Disability Discrimination Act
Glenda Beecher*
This article looks at the provisions in the Disability Discrimination Act 1992 (Cth) (DDA) that empower the Minister to make disability standards to assist organisations bound by the DDA and people with a disability to understand in practice what is required to comply with the DDA. It took 10 years from when the DDA was enacted for the first disability standard to be made. The article examines the causes of the delay and critiques the ‘consensus approach’ used to develop disability standards in Australia. It contrasts the consultative methods used for the development of disability standards in the US and UK with the consensus model used in Australia, and suggests that regulators abandon the consensus approach to expedite the making of disability standards.
Australia has implemented legislation establishing the legal right for people with a disability to be free from discrimination and to participate in the community in the same way as people without a disability. This legislation has achieved positive change to the everyday experiences of people with a disability. But discrimination against people with a disability has not been eliminated, and their exclusion from equitable participation in the community continues.
The key to the integration of people with a disability is for employers, educators and providers of services and facilities to understand precisely what they must do to comply with the law. Legislation establishes principles to eliminate discrimination, but provides no guidance on how these principles can be implemented in practice. This article examines how the absence of detailed directives on how to eliminate discrimination has held back achieving this objective.
The DDA commenced operation on 1 March 1993. Previously, disability discrimination legislation existed in some States of Australia.1 Disability discrimination principles contained in international law (Declaration on the Rights of Disabled Persons at 88; Declaration on the Rights of Mentally Retarded Persons at 93) had been implemented by Australia in domestic law recognising human rights (Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act)). However, there was no scheme of national legislation to eliminate inequalities faced by people with a disability in many areas of public life.
The United Nations Declaration on the Rights of Disabled Persons called for action by member states, including Australia, to protect the rights of disabled persons ‘to enjoy a decent life, as normal and full as possible’. In 1993 the General Assembly of the United Nations adopted the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (the Rules) to provide guidance to member states for the development of national disability programs. The Rules recommend the development of standards, guidelines and legislation to ensure accessibility of services and facilities — such as buildings, transport, information services and education — and encourage consultation with people with a disability when standards and norms for accessibility are being developed.
National statistics indicate that one in five adults (21 per cent of the adult population) in Australia has a disability (Australian Bureau of Statistics 1998). The purpose of the DDA is to achieve equality of opportunity and fair treatment for people with a disability. When the DDA was introduced, it was recognised that people with a disability in Australia did not enjoy the same rights and privileges as those without a disability. In his Second Reading speech on the Disability Discrimination Bill on 26 March 1992, Minister Howe said of the treatment received by people with a disability:
People with disabilities are entitled to the same rights and the same opportunities as all other Australian citizens. However, our society currently falls well short of realising this ideal. People are still subject to discrimination purely on the basis of disability ... which ... is socially damaging, morally unacceptable and a cost to the whole community [House of Representatives 1992: 2750.]
The DDA goes further than merely addressing the issue of unfair treatment. It addresses structural barriers preventing people with a disability from exercising the rights and freedoms enjoyed by people without a disability. In his Second Reading speech, Minister Howe identified key issues addressed by the DDA to include access to employment, education, sport and entertainment and providing an effective means to overcome the most significant barrier faced by people with disabilities — the attitudinal barrier (House of Representatives 1992: 2750). It was anticipated that the DDA would be instrumental in achieving broad social change with far reaching effects for people with a disability. Thirteen years later, there is significant progress towards achieving this objective, although not as far reaching as the Minister had anticipated.
Significant positive changes have occurred. Many workplaces and service providers have adopted policies condemning disability discrimination. Government funded programs facilitate access by disabled people to employment and government services. Privately owned service providers increasingly accommodate physical access by people with a disability by providing ramps and self-opening doors, and communicate essential information for access to services using visual and aural technologies. Of most significance is the robust, well-used complaints system to deal with breaches of the DDA.
While recognising and applauding the important changes achieved to date, this article examines limitations on the extent of the change and the reasons for the limitations. It examines the causes for the delay in achieving the objective of the DDA to eliminate discrimination and provide equality of opportunity for all to the extent possible. In this review, the writer will focus on the role of the disability standards to achieve these objectives, and the extent to which disability standards have been implemented.
From its commencement in 1993, s 31 of the DDA gave the Minister power to formulate standards known as ‘disability standards’. The Minister is empowered to make standards dealing with the areas of employment; education; accommodation; access to premises; the provision of public transport services and facilities; and the administration of Commonwealth laws and programs. The purpose of disability standards is to provide detailed guidance to clarify the obligations under the DDA.
A disability standard formulated by the Minister must be tabled before each House of Parliament and will take effect, if not disallowed by either House, after at least 15 sitting days (s 31). Once in operation, it is an act of unlawful discrimination to contravene the standard (s 32). If an aggrieved person believes a standard has been breached, a complaint can be lodged with the Human Rights and Equal Opportunity Commission (HREOC) alleging a breach of the DDA (s 46P). HREOC will inquire into the complaint and may attempt to resolve it through conciliation (s 46PF). If unresolved, the complaint will be terminated (s 46PH) and an application may be made to have the complaint heard by the Federal Court or the Federal Magistrates Court (s 46PO). If a breach of a disability standard is proven, the court may make a range of orders, including an order that damages be paid and/or any reasonable act performed to redress the damage to the applicant (s 46PO).
The DDA has been amended from time to time. These amendments have particularly affected the provisions relating to disability standards.
In 1993 there was no ability to make disability standards for access to premises. The Property Council of Australia had successfully opposed the inclusion of such a power (Parliamentary Debate of Human Rights Legislation Amendment Bill, House of Representatives 1999a: 3759). However, the Property Council changed its views and supported subsequent amendment of the DDA to allow disability standards for access to premises (Parliamentary Debate of Human Rights Legislation Amendment Bill, House of Representatives 1999a: 3759). This change of position can be seen as having resulted from intervening events.
Between the early and late 1990s, many complaints were successfully made under the DDA alleging denial of access to premises by disabled persons through the building owner’s failure to provide, for example, wheelchair access. Consequent orders required costly renovations. For example, in Cocks v Queensland the complainant was confined to a wheelchair and could not access the main entrance of the Brisbane Convention and Exhibition Centre. The main entrance was architecturally significant. Wheelchair access was provided using a side entrance 43 metres away. The cost of installing a lift at the main entrance was estimated to be almost $300,000. However, the Queensland Anti-Discrimination Tribunal ordered that wheelchair access be constructed at the main entrance. The Tribunal found that providing wheelchair access more than 40 metres from the main entrance constituted unlawful discrimination. The alternative access provided denied disabled people the right granted to able-bodied persons: to access the premises via the main entry. According to the Tribunal, the cost of making the premises wheelchair accessible was small when compared to the multimillion dollar project and the financial resources of the State of Queensland.
Following this and other similar cases, the Property Council of Australia joined with HREOC, the Australian Building Codes Board (ABCB) and State and federal regulators to support the push by the disabled community to amend the DDA to include the ability to make standards for access to premises (Parliamentary Debate of Human Rights Legislation Amendment Bill, House or Representatives 1999a: 3759).
In 1999 the Labor opposition, acting in response to this push, proposed an amendment to the Human Rights Legislation Amendment Bill 1998 to enable standards to be formulated by the Minister for access to premises (Second Reading of the Bill by Attorney-General Williams, House of Representatives 1999b: 3746). The Coalition Government accepted the amendment and the Bill was passed, commencing operation on 13 April 2000.
The next legislative changes impacting on disability standards occurred in anticipation of the commencement of the Disability Standards for Accessible Public Transport 2001 (Transport Standard), which when given effect on 23 October 2002 was the first and only standard in operation under the DDA. It was said by Minister Worth: ‘This bill is an important precursor to the formulation of disability standards for accessible public transportation services and facilities’ (Second Reading of the Disability Discrimination Amendment Bill 2002, House of Representatives 1992: 196). Under the DDA, blanket statutory exceptions2 that excuse otherwise unlawful disability discrimination do not apply to a breach of a disability standard. However, since 19 August 2002, the commencement of the DDA, a person can apply for an exemption3 to the Transport Standard. Exemptions are granted in the public interest and can provide certainty to a person unable to comply with the DDA. The new power of HREOC to grant exemptions to the Transport Standard (but not disability standards generally) may only be exercised after consultation with the National Transport Secretariat, a body jointly funded by all jurisdictions reporting to the Australian Transport Council. The Secretariat will provide the Commission with technical advice on the exemption application (Second Reading of the Disability Discrimination Amendment Bill 2002, House of Representatives 1992: 196).
Most recently, the Disability Discrimination Amendment (Education Standards) Act 2005 (Cth) was enacted (but as yet has not fully commenced) in anticipation of the commencement of the Disability Standards for Education (Education Standard), which is expected to come into effect in mid-August 2005. Among other things, the amendments expand the application of the defence of unjustifiable hardship available to educational institutions unable to meet the requirement to provide disabled access within their institutions.
This amendment is necessary because the Education Standard expands the application of unjustifiable hardship beyond its current application under the DDA. In the DDA the defence of unjustifiable hardship only applies if an educational institution refused or failed to accept a person’s application for admission of a student. Once a person is admitted as a student by the educational institution, there is no defence of unjustifiable hardship available to justify different treatment of that student. For example, if the course in which the student enrolled included an excursion, a disabled student must be able to participate in the same way as a student without a disability. To achieve this, special services or facilities may need to be provided to the student with a disability.
This limitation on the operation of s 22(3) of the DDA was expressly recognised by the Federal Court where it has been said:
... the ‘exempting provisions’ in section 22 ... apply only with respect to the obligation to accept a person with a disability into the education institution, or the terms of that acceptance, under section 22(1), and not to the way in which that person, once admitted to the educational institution must be treated under section 22(2). [A School v Human Rights and Equal Opportunity Commission, per Mansfield J.]
However, the Education Standard extends the defence of unjustifiable hardship to apply to educational institutions after the person is admitted as a student. So, if taking a student with a disability on an excursion requires special transport arrangements, and the cost of those arrangements is prohibitive, under the Education Standard the defence of unjustifiable hardship may apply, but (prior to this amendment) the defence would not apply under the terms of the DDA (s 22(4)).
If the terms of the Education Standard were to operate without amendment to the DDA, it would limit the rights of persons with a disability under the DDA. In effect, the Education Standard would purport to amend the DDA. Such amendment would bypass the parliamentary process for making legislation prescribed by the Constitution Act 1901 (Cth) and, in this writer’s view, be invalid and inoperative.4 In the writer’s view, the DDA enables the making of disability standards to detail the requirements of the DDA in order to implement its objects. It does not permit a disability standard to derogate from the requirements in the DDA by increasing the defences available to an alleged breach of its provisions.
This view is not shared by the Australian Government Solicitor (Disability Standards for Education Regulatory Impact Statement 2004: 20), who had advised the Taskforce that was established by the Ministerial Council on Employment, Education, Training and Youth Affairs to oversee the development of the Education Standard, that the standards were able to operate differently to the DDA and extend the defence of unjustifiable hardship (among other things).5 While not expressly disagreeing with this advice, as a matter of policy and good government the Productivity Commission recommended the scope of the DDA only be altered by amendment of the DDA and not by disability standards (Productivity Commission 2004: 406–8, Recommendation 14.1). In contrast, in obiter dicta two judges of the High Court have said that to extend the defence of unjustifiable hardship to apply once a person is admitted as a student to an educational institution ‘requires correction by Parliament’ (Purvis v New South Wales (Department of Education and Training)).6
The regular amendment of the DDA provisions dealing with disability standards demonstrates parliamentary recognition of the importance of disability standards in achieving the objectives of the DDA. The support of stakeholders for the introduction of disability standards is also high. This includes support from stakeholders in the business community. Advocating further legislative prescription is unusual for the business community, which ordinarily pushes for deregulation.
The reason for joint support for further legislative prescription is that stakeholders have found the obligations imposed by the DDA difficult to understand. They have also struggled to comprehend what constitutes unlawful discrimination. The obligations in the DDA are articulated with a high level of generality so that the DDA can be adapted to a multitude of factual circumstances to eliminate discriminatory behaviour and practices. The reality is that these general concepts can be difficult to apply with confidence to particular circumstances. Without certainty, many business stakeholders have delayed or elected not to commit to substantial expenditure to eliminate barriers to disabled access to their services or activities. This reluctance has meant delay in achieving the objects of the DDA. It has also led to a call for disability standards to provide direction about what is required to comply with the DDA. An examination of the DDA and cases illustrates how this request for direction came about.
The DDA prohibits discrimination in a range of areas of public life, including employment; education; the provision of goods, services and facilities; and access to premises. Direct and indirect discrimination are prohibited. Direct discrimination is the less favourable treatment of a person with a disability than a person without a disability would receive in circumstances that are not materially different (s 5). Indirect discrimination is the imposition of an unreasonable requirement or condition with which a person with a disability cannot comply and with which a substantially higher proportion of persons without a disability can comply (s 6).
The entrenched structural discrimination that the DDA aims to eliminate is indirect discrimination. For example, premises that do not have wheelchair access impose a requirement that to access the premises a person is able to traverse stairs. A person in a wheelchair cannot comply with this condition and, in the case of public buildings, this requirement will not be reasonable. By not providing access, the building (and therefore its owner or operator) indirectly discriminates against disabled persons who cannot traverse stairs, including people in wheelchairs.
In order to establish indirect discrimination, the parties to a complaint must apply the difficult concept of ‘reasonableness’. Reasonableness is one element of the test for indirect discrimination. It is only if the requirement or condition imposed is not reasonable that indirect discrimination can be established. In Waters v Public Transport Corporation, the High Court considered whether removing conductors and introducing scratch tickets to use the Melbourne metropolitan tram service indirectly discriminated against persons with a disability. Evidence was led that disabled people relied on the assistance of conductors to use the tram service and found it difficult to use scratch tickets. Justices Dawson and Toohey (with whom Deane J agreed) said that ‘reasonableness’ is a question of fact to be determined by weighing all the relevant factors. Their Honours said (at 395):
... the ability of the respondent to meet the cost, both in financial terms and in terms of efficiency, of accommodating the needs of impaired persons who use trams was relevant in relation to reasonableness of the requirements or conditions which it imposed and in relation to the reasonableness of the special manner in which the appellants required the respondent to perform its service. Another relevant factor would be the availability of alternative methods which would achieve the objectives of the Cabinet resolution [to alter the tram service] but in a less discriminatory way. Other factors which might be relevant are the maintenance of good industrial relations, the observance of health and safety requirements, the existence of competitors and the like.7
The judges adopted the finding of Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (at 263) that the ‘test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience’.
This interpretation of the term ‘reasonableness’ by Dawson, Toohey and Deane JJ has subsequently been adopted as authoritative (Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission; Victoria v Schou).
Even if a condition that is imposed is found to be reasonable, in most areas covered by the DDA there is a further obligation to make adjustments to how services or facilities are provided to accommodate a person with a disability (s 15(4)). This may be by providing special equipment, altering how the service is provided or offering some other additional assistance.
The only limit on the requirement to making adjustments to provide access to a disabled person is the defence that to do so would impose unjustifiable hardship on the service provider or facility operator (s 15(4)). The defence of unjustifiable hardship takes into account all the relevant circumstances of the case. These include the nature of the benefit or detriment likely to accrue to or be suffered by the persons concerned, the effect of the disability on the person concerned and the financial circumstances and estimated expenditure required of the respondent (s 11). Where a balancing process is required, particularly balancing factors that may be uncertain or unknown to the other party, it is difficult to predict the outcome of the defence. Like the requirement of reasonableness, the defence of unjustifiable hardship lacks certainty in its operation.
Uncertainty in the operation of the DDA impacts on both potential complainants and potential respondents to a complaint of breach of the DDA. For the potential complainant, the uncertainty may mean not knowing whether to insist that DDA principles require accommodation of their disability. The potential complainant is unlikely to be able to access information about the financial resources of the respondent or, if known, predict the weight to be attributed to this factor when compared with other factors in the test. While cases provide some guidance about the weight of these factors, the outcome of the balancing process remains difficult to predict as every case is unique.
For the respondent, this uncertainty creates reluctance to invest in costly alterations to facilities or services to accommodate people with a disability. Without clear requirements, many businesses have assumed the risk of a complaint, not knowing if the defence will apply. For example, structural alterations to facilities and premises can cost tens or hundreds of thousands of dollars. Many corporations have preferred to risk a complaint rather than take proactive steps that impact on their profit and loss statement, or have taken steps to address only the most obvious inhibitors to disabled access to their facilities or services. The tendency for business to assume this risk frustrates the objectives of the DDA.
Dissatisfaction from stakeholders about the perceived lack of clarity in the language of the DDA and the rights and obligations of stakeholders led to the change in attitude of the Property Council of Australia to disability standards for access to premises.
The Property Council of Australia originally opposed disability standards on access to premises because it was able to use the Building Code of Australia (BCA) to regulate compliance with the DDA. The BCA establishes practical standards to be met for the approval of plans to build or renovate buildings throughout Australia. The BCA is amended on a regular basis to incorporate additional requirements to ensure disability access issues are being addressed. For example, in November 2001 the BCA was amended to require Braille and tactile signs to assist visually impaired persons access premises covered by the BCA (List of Amendments, Amendment No 10, Vol 1 of BCA 96). Signage is being dealt with in the BCA because access to premises involves more than just physical access; it also includes access to the services provided on the premises.8 However, the BCA has still proved to be deficient in many respects. In many cases, its requirements have not achieved compliance with the DDA. The following are examples.
In a series of cases in HREOC and the Federal Court, the construction of an additional cinema in a cinema complex at Coffs Harbour in NSW (Cooper v Holiday Coast Cinema Centres Pty Ltd 1997; Cooper v Holiday Coast Cinema Centres Pty Ltd 1998; Cooper v Human Rights and Equal Opportunity Commission 1999; Cooper v Coffs Harbour City Council 2000) was scrutinised for compliance with the DDA. The scrutiny focused on the conduct of both the operator of the premises that had undertaken the development and the local council that approved the development plans. The operator of the premises put forward for approval by the council plans to construct a new cinema at the existing cinema complex. The operator asserted that although the development plans did not comply with the requirements of the DDA, to comply with the DDA would impose unjustifiable hardship. A rough estimate found the cost of making the cinema disability compliant would be in excess of $100,000, and the project in its entirety was estimated to cost $100,000. The council relied on the operator’s estimates and opinion that the defence of unjustifiable hardship applied. It approved the plans. In fact the cost estimates were incorrect, with the renovations costing $400,000. This meant the cost of providing disabled access was less significant when compared to the overall cost of the project. The defence of unjustifiable hardship did not apply and the operator was found to have breached the DDA because there was no wheelchair access and disabled entrants were forced to use stairways or be physically carried up the stairs. HREOC ordered the installation of stair lifts to provide access to all cinemas. The local council was also found to have acted unlawfully because it permitted the unlawful discrimination by the operator in contravention of s 122 of the DDA9 by approving the plans for renovations. Although the council honestly believed the erroneous cost estimates, that belief was found to be unreasonable. The estimates were not based on sufficient evidence and the council should have enquired further. Had it done so, according to HREOC, it would have become aware of the inaccuracy of the estimates. The finding in the case demonstrates the deficiencies of the BCA as a substitute for disability standards. In this case renovations had been approved in accordance with the BCA, and yet there was a breach of the DDA.
In addition to deficiencies in the content of the BCA, existing buildings where no renovations have been undertaken are not caught by the BCA. In Hall-Bentick v Greater Union Organisation Pty Ltd, a cinema centre in Melbourne, built in 1978 (prior to any laws about disability discrimination), contained theatres accessible only via stairs. The building had only had minor renovations since it was built. A complaint brought under Victorian legislation (equivalent to the DDA) successfully established unlawful disability discrimination because the complainant was treated less favourably than able-bodied people when he tried to access the cinema in his wheelchair. It was unreasonable to require him to traverse stairs to access the cinema. The respondent was ordered to provide wheelchair access to four of its six cinemas by installing a lift, wheelchair lifts or ramps, and to rotate all films shown in the other two cinemas through the accessible cinemas. It was also ordered to lower a section of the ticket counter and candy bar. This order was in addition to $67,000 spent prior to the hearing to improve disabled access to the building entrance and toilets, and despite evidence of the declining financial performance of the cinema. In this case, the BCA had no operation because no significant building works had been done to the cinema since it was built.
Despite the withdrawal of the opposition of the Property Council of Australia for the development of disability standards for access to premises, indications from the disabled community seem to have always supported disability standards. The frustration of the disabled sector with inaction on the part of those who own and control premises has heralded their consistent support for disability standards. Nevertheless, no standards were prepared until there was a change in position by the Property Council and consequent amendment of the DDA in 2000.
Since then, significant work has been done on the development of the Premises Standard. This has come about through the convening of meetings between interested groups (which include the Attorney-General’s Department, the Australian Building Codes Board (ABCB), the Property Council of Australia, HREOC, and representatives from the disabled sector and design professions) by the Building Access Policy Committee, which has been charged by the Minister with primary responsibility for the development of the Premises Standard.
Stakeholders have realised that the BCA is not consistent with the DDA and provides little protection when a complaint is made under the DDA. The only way to achieve detailed guidance for DDA compliance is to establish disability standards recognised under the DDA.
The uncertainty of outcomes in the absence of disability standards has led to stakeholder support for disability standards across industries. As early as November 1993, HREOC released a paper advocating disability standards to help overcome limitations of the DDA by making its implicit requirements available in an immediately accessible form (Disability Discrimination Commissioner 1993).
The development of draft disability standards has revealed the degree to which DDA obligations can be made accessible by imposing specific and detailed requirements, together with timeframes for compliance. For example, the Transport Standard requires that by certain target dates compliance with its terms be achieved by all persons to whom the standards apply.10 The Transport Standard prescribes detailed requirements, including for access paths and access areas, toilets, signs, tactile ground surface indicators, lighting, controls, hearing augmentation–listening systems, information and services. The Transport Standard links with requirements in the Australian Standards.11
HREOC predicted that providing this information in an authoritative and definitive manner in disability standards recognised under the DDA would reduce uncertainty for potential complainants. It would also help potential respondents minimise the risk of complaints by providing timetables to achieve compliance with the requirements in the standards and, therefore, compliance with the DDA (Disability Discrimination Commissioner 1993). It would also encourage the use of action plans to meet the deadlines set by the standards. An action plan is a voluntary plan to achieve compliance with the DDA, usually staged over a period of time (s 61). The existence and content of this action plan is one factor taken into account when assessing the availability of the defence of unjustifiable hardship (s 11(d)).
The development of the disability standards has been the subject of the unusual requirement that stakeholders are integrally involved in their development and finalise their content though a process of consultations culminating in agreed outcomes. Seeking agreement on the terms of the disability standards has hampered their progress and resulted in the two disability standards in existence taking 10 and 13 years, respectively, to formulate since the commencement of the DDA. The work of the steering committees for the development of the standards has been frustratingly slow. According to Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner in 2002: ‘It is a serious concern, that almost ten years since the Disability Discrimination Act was passed no standards are yet in force’ (Ozdowski 2002a).
The cause of the delay seems clear. The process used for the development of the disability standards has prioritised securing consensus about the content of the standards over finalising and implementing the standards. Committees are convened with representatives from key stakeholders to negotiate the content of the standards. Yet, by their very nature, the inclusion on the committees of representatives of the various stakeholders with different priorities and objectives, and different views about how and when equitable access can be provided to people with a disability, has meant that achieving agreement about the content of the disability standards is slow, and in some cases impossible.
The consensus decision-making adopted by the Minister goes beyond the consultative development process endorsed by the United Nations (Standard Rules on the Equalisation of Opportunities for Persons with Disabilities) and consultation methodology often used to develop subordinate legislation (Tomasic 1989). In contrast, consensus decision-making is used to develop Australian Standards (Standards.org.au). However, Australian Standards are not subordinate legislation but voluntary standards setting minimum requirements for certain activities. Australian Standards may become legislative requirements if, after they are developed, laws refer to and adopt them. Until then, they are developed as voluntary benchmarks, procedures or requirements. This voluntary status lends itself to using consensus decision-making in their preparation.
Consensus decisions are only made when all participants consent to the result of the discussion about the proposal (<www.consensus.net/ocac2>). In the development of disability standards, this means that the content of the standards must be agreed by those negotiating their terms or no standards will be made. Indeed, this is the experience during the first decade of operation of the DDA and demonstrates a key problem with consensus decision-making, where no agreement is possible as competing stakeholder interests and views are irreconcilable (<www.encyclopedia.laborlawtalk.com/consensus>). Whether this is because some stakeholders have withheld agreement to, in effect, exercise a power of veto over the final content of the standards is beyond the writer’s knowledge; however, this is possible when decisions are made by consensus and it is one reason why such an approach should not be used to formulate disability standards.
That is not to say that there are no benefits from consensus decision-making. Often, it is employed to ensure that minority views are considered (<www.encyclopedia.laborlawtalk.com/consensus-decision-making>). In the case of disability standards impacting a wide range of stakeholders with vastly divergent views and interests, the airing of minority views is a critical part of the decision-making process.
However, while taking account of a wide range of views and endeavouring to reach a compromise acceptable to all parties affected, lawmaking should not require consensus. In this writer’s view, while empowering minorities in the process by ‘identifying and addressing concerns, generating new alternatives, combining elements of multiple alternatives and checking that people understand a proposal or an argument’ (<www.encyclopedia.laborlawtalk.com/consensus-decision-making>), requiring an outcome of consensus can delay the process and may also impact the quality of the outcome achieved. This can be seen in the case of each of the disability standards finalised or near finalisation.
The disability standards exclude significant areas of potential regulation because agreement was unable to be achieved. For example, in the Transport Standard, the issue of dedicated school buses has not been dealt with. In the Premises Standard (still in draft form), existing buildings and existing buildings that undergo less than a certain proportion of new works are not dealt with. Nor does the Premises Standard deal with the height of service counters or discriminatory actions of staff not allowing access to buildings. This negatively impacts one of the key objectives for developing the standards in the first place — creating certainty for stakeholders as to the requirements of the DDA in these specific areas of the standard’s operation.
The development of the disability standards has also demonstrated another key criticism of consensus decision-making: it may be slow (<www.encyclopedia.laborlawtalk.com/consensus-decision-making>). In the case of the disability standards, in this writer’s view their development has been inordinately slow. This should not be the case for disability standards, which are subordinate legislation. A key feature of subordinate legislation is its flexibility (Douglas 2002); namely, its ability to be made and changed quickly, responsive to community needs. Usually a parliamentary draftsperson would draft subordinate legislation on instructions from the relevant Minister’s office (Pearce and Argument 1999). While the Commonwealth legal requirements do not require consultation, since 1997 administrative requirements have been in place to require a Regulation Impact Statement to be prepared for all subordinate legislation that affects business (<www.encyclopedia.laborlawtalk.com/consensus-decision-making>). In the case of each of the three disability standards prepared to date, a Regulation Impact Statement has been prepared, as well as extensive consultation with the public and negotiation with stakeholders over the content of the standards.
The use of consensus to determine the content of the disability standards has led to their very lengthy development timeframe. Under its statutory duty to report to the Minister about the progress of the development of disability standards (s 67(1)(d), DDA), HREOC has made clear its frustration about the length of time taken to finalise the standards (Ozdowski 2002a). Only recently has there has been an indication that the Minister may adopt a different approach to expedite development of the standards.
In an exception to the approach requiring agreement before the standards are finalised, despite objections from some States, the Education Standard is expected to commence in August 2005. The Education Standard has been under development since 1995. After a meeting on 10 June 2003, at which its content was agreed, the States and Territories (other than the ACT and Tasmania) refused to support its implementation. The States expressed concerns about the cost of implementation and sought Federal Government funding to cover those costs. In response, the Minister moved to make the Education Standard unilaterally (Attorney-General’s Department 2003; Disability Standards for Education Regulatory Impact Statement 2004). On 17 March 2005, the Education Standard was tabled in Parliament. It is expected to commence in mid-August 2005 (Department of Education, Science and Training 2005).
Many disability standards have been discussed and, in some cases, drafted. However, for the most part their progress has stalled. These include draft standards on employment (abandoned in 1998); the world wide web (released in 1999 as advisory notes); insurance and superannuation (released in 1998 as guidelines and revised in 2005); and Commonwealth Government information and communication (released in 1996 as a discussion paper). At this stage, there are no firm plans to progress the development of these discussions as disability standards under the DDA. The disability standards that have progressed relate to access to public transport, premises and education.
Support by stakeholders for the development of disability standards has not expedited their development. The divergence of opinions of stakeholders about the content of the standards makes achieving consensus painstakingly slow. For example, work on the development of the Transport Standard commenced in 1995 as an initiative of the transport ministers throughout Australia in response to a series of complaints under the DDA. The most high profile case originated in Victoria under equivalent Victorian legislation and went all the way to the High Court (Waters v Public Transport Corporation). Although the complainants were eventually unsuccessful on the facts, the case sent warning signals to transport operators that disability action groups were organising and the High Court recognised that their claims could have merit. In 1996 an early draft of the Transport Standard received in-principle approval from the Australian Transport Council (comprising all transport ministers). However, it took until May 2002 for the Attorney-General to release the final draft of the Transport Standard (Ozdowski 2002a), which commenced operation on 23 October 2002.
The development of the Premises Standard has moved more quickly than the Transport Standard, but still has not been finalised. The Premises Standard commenced development after the 1999 amendment to the DDA. The purpose of the standard is to provide certainty for the owners and developers of premises and greater understanding of their rights and responsibilities under the DDA. In April 2000, the Building Access Policy Committee (BAPC) commenced negotiation to formulate the Premises Standard. The committee has representatives from key stakeholders and is charged with the responsibility of the development of the Premises Standard.
The draft of the Premises Standard was first released for public comment in February 2004 (Disability Standards for Access to Premises (Buildings) 200X 2004). This represented a significant delay on the proposed release of draft documents by mid-2002 (ABCB 2001). It was released together with a package of related draft documents (Guidelines to the Disability Standards for Access to Premises (Buildings) 200X 2004). The public consultation period concluded on 30 April 2004 and the BAPC is currently considering submissions made as part of that consultation (<www.abcb.gov.au/dsp_document_view.cfm>). Due to significant disagreement by stakeholders, the coverage of the Premises Standard does not extend to all applications of the DDA to buildings. It only covers new buildings, new work on existing buildings and, in some cases, existing buildings affected by new work. Those who design, build, own, lease and operate such premises will need to comply with the specific accessibility requirements in the Premises Standard.
One major area of controversy over the application of the Premises Standard is its application to existing buildings. As presently drafted, if new work is done to a certain proportion of an existing building12 it may trigger an upgrade to the entire building to comply with the Premises Standard. It does not apply to existing buildings where no new work is done, or where new work falls below this threshold. However, the DDA can still apply in these circumstances.
When it applies, the Premises Standard prescribes how to achieve compliance with the DDA. The Premises Standard establishes ‘performance requirements’ or ‘deemed to satisfy’ provisions, which are used in the BCA and familiar to those working in the industry. In this way the design solutions prescribed by the Premises Standard or any alternative adopted in practice must perform to the same level as the method of providing access prescribed by the Premises Standard.
Work is also underway to harmonise the BCA with the DDA, to ensure they are consistent and that the BCA implements obligations in the DDA. This includes revision of a number of Australian Standards (AS1428.1; AS1428.4; AS2890.1) and the development of A Process to Administer Building Access, which is a protocol that will establish Access Panels recognised under State and Territory building laws to assess alternative solutions under the BCA and Premises Standard; review a building upgrade plan under the Premises Standard; and consider claims of unjustifiable hardship.13
The histories of the Transport Standard and Premises Standard show that the consensus approach results in lengthy negotiations about content which, in turn, delay their development.
Delay in achieving the consensus required for the implementation of disability standards recognised under the DDA has led to the emergence of alternative streams of informal self-regulation rather than an expansion of the areas in which disability standards under the DDA operate. Some industry stakeholders have developed ‘voluntary’ disability standards. While the concept of a voluntary standard is not recognised under the DDA, such standards have been ‘made’.
Following the 1999 request by the Attorney General that HREOC hold a public inquiry into the accessibility of electronic commerce, on 15 April 2002 the Australian Banker’s Association released a voluntary banking industry standard for e-commerce. The standard will not be tabled in Parliament under the DDA and has no official status. However, the voluntary standard has received recognition from the Attorney-General as an alternative system of self-regulation, in effect a voluntary compliance code. Following its launch, the Attorney-General ‘urged’ service providers in the banking industry to adopt the standard (Attorney General 2002). The Attorney-General has not suggested why the DDA has not been amended to enable the standard to be tabled in Parliament, giving it binding status as a disability standard under the DDA.
Progress in the area of disabled access to the world wide web has also been undertaken by means of voluntary compliance in the form of non-mandatory guidelines (or advisory notes) issued by HREOC under s 67(1)(k) of the DDA. Disabled access to the world wide web first gained attention in Maguire v Sydney Organising Committee for the Olympic Games (SOCOG case). Mr Maguire, a visually impaired man with a keen interest in the Olympics, successfully proved that the failure of SOCOG to provide information on its internet site about the Olympic Games in a form accessible to visually impaired persons constituted unlawful disability discrimination. The Court held the defence of unjustifiable hardship did not apply due to the significance of the event (the Olympic Games), the excessive estimate of the cost of complying with the DDA ($2.2 million) and SOCOG itself causing delay in the proceedings that made it difficult for SOCOG to comply with the court order before the Olympic Games started.
HREOC has issued advisory notes relating to access to the world wide web (HREOC 1999), which now take into account the Requirements for Web Content Accessibility Guidelines developed by an international committee known as W3C Web Content Accessibility Guidelines Working Group (<www.w3.org/TR/WAI-WEBCONTENT>). These notes provide guidance to owners of websites on making their sites accessible to people with a disability through specially designed web-browsing software.
Given the popularity of alternatives to disability standards under the DDA and the expedition with which they have been made, what protection do they provide to industry to demonstrate compliance with the DDA? Compliance with a disability standard ensures compliance with the DDA. There is no such assurance when following a voluntary standard.
The extent to which a voluntary standard achieves compliance with the DDA depends on the quality of the content of the standard — that is, the degree to which it is adapted to implement practically the requirements of the DDA. For example, the BCA (although never designated a ‘voluntary standard’ and not, in practice, ‘voluntary’) was prepared and is imposed by industry to, in part, comply with the DDA. It has no status under the DDA. The cases referred to in this article indicate that the BCA has not always achieved compliance with the DDA, despite it containing provisions that address the issue of disabled access.
Cases indicate that anti-discrimination tribunals may have regard to efforts to comply with the law through voluntary compliance with industry standards seeking to eliminate discrimination. For example, compliance with an action plan (another form of voluntary compliance) is relevant to establishing the defence of unjustifiable hardship (s 11). The efforts of one respondent to comply with the draft Transport Standard were a factor commented on in determining if it met the requirements of Queensland anti-discrimination legislation, which mirrors the requirements of the DDA (Harris v Transit Australia Pty Ltd). However, a voluntary compliance code is only one factor. It is not determinative, which contrasts with compliance with a disability standard. This problem with voluntary compliance standards has been the subject of official comment. The Regulation Impact Statement on Draft Standards for Accessible Public Transport (Attorney-General’s Department 1999) states that it can be expected that HREOC will be persuaded by non-mandatory guidelines issued by it, but the Federal Court (or indeed, the Federal Magistrates Court) may not be so persuaded.
The quality of the recommendations in the voluntary standard is the key issue that will be examined when determining if there is compliance with the DDA. For example, in the case of the Web Content Accessibility Guidelines issued by W3C, there are three levels of conformance that can be adopted by website owners. The different levels of disabled access achieved necessarily involve graduated complexity and cost. Some organisations may be able to satisfy their obligations under the DDA by providing a lower level of disabled access to their websites set out in the guidelines than do other organisations. The level of access required is likely to vary depending on the nature of the information on the website and the activities of the organisation that is the subject of the website. The more significant the activities of the organisation in the community, the greater the detriment that will be caused by limited or no access by disabled people. The SOCOG case demonstrates that a high level of access will be required where a website is the only source of information about an event with national significance, such as the Olympic Games. One can imagine essential services, such as utilities, government departments, transport operators, banks, schools and television will also require high levels of access.
Voluntary compliance schemes have no status under the DDA and, therefore, do not provide the certainty stakeholders are seeking. This makes the development of disability standards under the DDA more important.
The delays in development of disability standards are so significant in spite of stakeholder support that the question must be asked why the consensus approach is still being pursued. Once the delays have become apparent, why has it remained the prevailing method for developing disability standards?
One of the key reasons for the use of a consensus decision-making process is its ability to capture and take account of the wide range of divergent views and to have minority views taken seriously. Unlike in a simple majority decision-making process, the well resourced and represented business and government sectors (who will unquestionably bear very significant economic cost as a consequence of making the disability standards) must listen to and deal with the very people the DDA is designed to protect — disabled people.
Another reason to adopt a consensus approach is the benefit consultation has in educating stakeholders about their obligations, helping them to understand the reasons for these obligations and the benefits they provide to the largely marginalised disabled sector in our community and also to understand the consequences of failing to comply. Understanding the broader landscape (beyond mere economics), it provides all stakeholders affected with the opportunity to dictate the content of standards they must meet. Consensus means stakeholders ‘own’ the content of the standards, having been the ones who agreed to their content. This ownership will undoubtedly assist to secure more widespread compliance with the standards once in operation. Finally, once the likely content of a standard is known, stakeholders may take steps in advance of their commencement to comply with the standards. Evidence about the Transport Standard shows it has been developed ‘about five years slower than anyone hoped, [but] many public transport operators have in effect been applying the draft Standards for several years in moving on a large scale towards accessibility’ (Ozdowski 2002a). In 2003 some stakeholders were about to reach the five year compliance milestone, although the Transport Standard had only just commenced operation.
The content of disability standards
Stakeholders support disability standards because they have the capacity to be prescriptive and specific about what is required to meet the otherwise uncertain requirements of the DDA.
On 23 October 2002, the Transport Standard was given effect by the Senate and House of Representatives in the Commonwealth Parliament and commenced operation. The requirements it contains are outlined above. Either the operator or the provider of a public transport service must comply with the standards or provide ‘equivalent access’, following consultation with passengers with a disability. ‘Equivalent access’ means access to the service other than in compliance with the standards. The access must be of an equivalent standard of amenity, availability, comfort, convenience, dignity, price and safety as that provided by the standard. It cannot be a segregated or parallel service. Most importantly, the Transport Standard sets a 30 year timetable for the provision of disabled access to publicly accessible transport, where at the end of each five year anniversary certain access milestones must be met.
However, the Transport Standard does not comprehensively regulate disability access issues for public transport. The consensus model has meant that, when agreement could not be reached on issues (such as dedicated school buses), these issues were omitted from the standard. This has the effect of undermining the objective of certainty through comprehensive regulation of the potential area of coverage of the standard.
On 2 April 2004, the Transport Standard was amended (Disability Standards for Accessible Public Transport Amendment 2004 (No 1)) to address several of the issues upon which agreement was not reached in 2002 where further work has resulted in achieving a consensus. These included access paths and passing areas on vehicles.
Compliance with the Transport Standard is required to the maximum extent possible not involving unjustifiable hardship. While it may create unjustifiable hardship to provide a certain facility, any part of that facility that does not impose unjustifiable hardship must still be provided or the standard is breached. The test for unjustifiable hardship is more detailed in the Transport Standard than in the DDA. Additional factors taken into account include the effect on capital of compliance with the standard; exceptional operational, technical and geographic factors; detriment such as loss of heritage value; evidence of acting in good faith to comply with the standards; and consultation engaged in regarding means of compliance with the standard. This extends the factors considered in the test for unjustifiable hardship. The definition of unjustifiable hardship in the DDA is not exhaustive and the standard identifies additional relevant considerations.
The draft Education Standard covers enrolment in, participation in and delivery of education and student support services. The Education Standard sets out a statement of rights for students with a disability, legal obligations of educational authorities and measures that can be taken to demonstrate compliance with legal obligations. The Education Standard requires reasonable adjustments that are measures or actions to be taken in order to provide substantive equality for students with a disability. The main defence to compliance with the standard is that compliance would impose unjustifiable hardship.
The Education Standard is quite different in its content to the Transport Standard and the Premises Standard (discussed earlier). It sets mandatory standards for an education institution to comply with. However, in essence these standards are a process for assessing students’ needs before deciding if the needs can be met by the educational institution. There is no prescription of what must be done to meet students’ needs, or indeed whether any adjustments must be made to assist a student. Nor does it address when an application for enrolment by a potential student must be accepted. With no prescriptive benchmarks, the standard then sets out non-mandatory ‘measures’ that, if followed, will assist to show compliance with the standard. However, even these measures are specified in general terms, leaving open for interpretation whether the measures have been achieved in any particular case. This method of formulation of the standard does not, in this writer’s view, provide a degree of prescription that will significantly advance the case of the current uncertainty with the DDA. That is not to say that its provisions do not help with understanding obligations under the DDA. It is just that it does not go far enough to create real certainty.
There is a perception that the Education Standard does not progress the needs of disabled persons.14 As a consequence, for many years its progress stalled. Indeed, this may explain why at one point there was doubt about whether the Education Standard would be advanced (HREOC Annual Report 2001–2002).
Overseas experience with disability standards
Experiences in the US and the UK provide interesting comparisons to the Australian method of consensus to develop disability standards.
In the US
The Americans with Disabilities Act 1990 (US) (ADA) regulates disability discrimination in the private sector in the areas of employment, education and access to buildings and services. Federal agencies in the US are similarly regulated by the parallel Rehabilitation Act 1973 (US) (amended in 1992). State anti-discrimination legislation also exists throughout the US.
In the US, an estimated 43 million people have a disability. The ADA recognises that, historically, persons with a disability have been isolated or segregated in US society and that discrimination persists in areas such as employment, housing, education, transport, communications and other services. The ADA also recognises the many barriers to equality of opportunity for people with a disability and establishes a national mandate to eliminate discrimination and provide enforceable standards to address discrimination.
The ADA provides for subordinate regulation to detail disability discrimination obligations. For example, it requires that within nine months of its enactment the Architectural and Transportation Barriers Compliance Board (Access Board) issue minimum guidelines to ensure that buildings, facilities, rail passenger cars and vehicles are accessible in terms of their architecture and design, transportation and communication to individuals with disabilities. The ADA Accessibility Guidelines for Buildings and Facilities (the Guidelines) fulfil this requirement and contain detailed regulation, as is anticipated in the Australian Premises Standard. The ADA also requires that within 180 days of its enactment, the Attorney-General, in consultation with the Access Board and the Equal Employment Opportunity Commission (EEOC), develop a plan (design standards) to assist entities understand their obligations under the ADA. The plan must be published for public comment and implemented by the Attorney-General and the EEOC. Design standards have been implemented under the ADA.
The process of consultation to develop the Guidelines and standards under the ADA was more limited than that pursued in Australia. Rigid timeframes meant consultation could not delay implementing the detailed regulation. The implemented Guidelines have been the subject of a 10 year review by the US Access Board, particularly taking into account technological innovations (Access Board 2004). The new Guidelines are based on recommendations of an advisory committee of the Access Board consisting of representatives from disability groups, the design profession and building code organisations, as well as public comment on a published draft of the Guidelines. Design standards made to comply with the Guidelines are currently under review.
Once implemented, the Guidelines have been used to establish the detail of what is required to provide disability access in accordance with the ADA. The Guidelines also contain a procedure to certify State laws and local building codes and ordinances as meeting or exceeding the accessibility requirements in the ADA. Code certification facilitates voluntary compliance and allows, for example, builders to receive regular assurance of compliance with the ADA through inspections undertaken throughout the construction process. Any non-compliance detected during construction is likely to be more readily corrected, and at a lower cost, than corrections after construction is complete and following prosecution. The Guidelines prescribe that compliance with a certified code constitutes rebuttable evidence of compliance with the accessibility requirements in the ADA.
Failure to comply with the Guidelines or certified code is an indicator of a failure to comply with the ADA. This carries with it the attendant risk of successful prosecution to enforce the ADA. A prosecution can result in the grant of an injunction — to stop an anticipated breach of the Guidelines and therefore the ADA — or an order for the payment of compensatory damages. If the Department of Justice prosecutes the alleged breach of the ADA and the Guidelines, then there is also the risk of the imposition of civil penalties in the form of fines of up to US$50,000 for a first breach, and US$100,000 for any subsequent breach.
There are an estimated 9.8 million disabled people in Great Britain (<www.drc.org.uk>), or approximately one seventh of the population. The government has addressed the disability rights issue in the Disability Discrimination Act 1995 (UK) (DDA (UK)). The DDA (UK) imposes obligations not to discriminate on the basis of disability in access to premises necessary to obtain services, transport, communication and information services, housing services, banking, insurance, entertainment services, employment and education.
Under the DDA (UK), the Disability Rights Commission can make Codes of Practice on matters relevant to the elimination of discrimination against persons with a disability. A Code of Practice operates in a similar manner to a code under the Victorian Occupational Health and Safety Act 1985. The content of a Code of Practice is not a statement of law. Therefore, it is not, of itself, an offence or breach of the legislation to breach a Code of Practice. However, non-compliance with the Code of Practice may be used in legal proceedings to show non-compliance with obligations under the DDA (UK).
The Code of Practice — Rights of Access, Goods, Facilities, Services and Premises was issued in 1996 and revised in 1999 and 2002 to take into account changes to the law and experience since it was first implemented. It includes obligations on service providers to make adjustment when the physical features of their premises make it impossible or unreasonably difficult for disabled people to use their services.
Under the DDA (UK), the Secretary of State has statutory power to issue guidance on these matters, which has been done through Codes of Practice. To do so, the Secretary of State must draft the Code (or may ask the Disability Rights Commission to do so) following a consultation process. The draft is to be issued for public comment and, if appropriate, modified before being laid before Parliament for 40 days for approval. If not disapproved, the Code will come into force on the date appointed by the Secretary of State. Regulations may be made. In addition to the Code dealing with access, Codes exist for employment, trade organisations and qualification bodies and schools.
In the UK, the consultative approach adopted is more flexible than that used in the US. However, Codes have been implemented in much shorter timeframes than experienced in Australia. Consultation is just that — consultation rather than a requirement for consensus.
The US and the UK provide interesting comparisons to the Australian experience. Each has overarching legislation making disability discrimination unlawful and both use subordinate legislative instruments to establish detailed legal compliance regimes, similar to Australia. However, neither has suffered the degree of delay experienced in Australia to implement those subordinate instruments. The degree to which they are further advanced than Australia in developing guidelines and standards cannot be explained by the earlier date for the implementation of the enabling legislation in the US (1990), because the UK developed legislation after Australia (1992 versus 1995). Each jurisdiction has adopted a consultative development model, but it is more akin to that ordinarily adopted in Australia in the preparation of subordinate legislation. Only Australia has required consensus on the content of the standards before they have been made. The practical effect has been to stall the objective of the process — the establishment of the standards.
This delay may be distinguished in the case of the UK, where Codes of Practice do not have the force of law — unlike disability standards under the DDA. However, this cannot be said of the US, where Guidelines can be enforced as if law under the ADA and the ADA has a regime for the imposition of statutory penalties in addition to relief in the form of injunctions and compensatory damages orders. Whether carrying the force of law or not, one must ask whether the extent of the delay in the development of the disability standards under the DDA can be justified when Parliament itself did not impose any consensus requirement for their development. The DDA is silent as to the process for the development of disability standards.
In 2004, the Productivity Commission reviewed the delay in the development of the disability standards as part of its Review of the Disability Discrimination Act 1992. While it found that the development of the standards had been very slow, it concluded that ‘imposing deadlines as a way of expediting formulation of standards could constrain the consultation process and result in inferior standards’ (Productivity Commission 2004: Finding 14.5).
In support of this finding, the Productivity Commission reasoned that the absence of standards did not denote an absence of activity, that there were genuine disagreements over content and that some inquiry participants had been critical that the consultation process was still not as thorough as it needed to be. It specifically rejected the US methodology for developing standards.
It is beyond the scope of this article to review the success or otherwise of the methods used in the US and the UK for developing the standards, when compared to Australia, against the levels of compliance with those standards. Indeed, it is too early to review such compliance in Australia as there is only one standard currently in force, and this has only been the case for just over two years. Anecdotally there is evidence of continuing non-compliance with the law in both the US and the UK. While many stakeholders are represented at meetings where the standards are being developed in Australia, this writer expects Australia too will experience non-compliance with the new standards from those who are unsympathetic to the special needs of disabled people, or who are unwilling or unable to commit the resources needed to make their services or facilities accessible to disabled people.
The development of disability standards in Australia is supported by the persons most affected by the DDA and by government as the key to taking the next step to remove barriers to disabled people being integrated into the community to the extent possible. Australia has adopted a model for the development of these standards that goes beyond international directives to consult when developing standards. In stark contrast to the development models used in the US and the UK, Australia has taken the consultation approach to a level not ordinarily seen in law making, by requiring consensus about the content of the standards. To require such consensus has effectively handed interested parties a right of veto (or at least lengthy delay) over the development of the disability standards, frustrating the goal of achieving detailed disability discrimination regulation and permitting private interests to thwart the wider public interest in developing disability standards.
The delay in implementing enforceable disability standards is excessive and unjustified. It is incumbent on government to bring the extensive consultation and negotiation process to a conclusion. Disability standards (where consultation has occurred) should be issued taking into account the competing views of stakeholders, but making the tough decision to settle disagreements about content. It is only if this occurs that comprehensive regulation for the benefit of all can be implemented. It remains to be seen whether the Coalition Government, a long-time supporter of deregulation and self-regulation, will heed this call.
Given the support disability standards have from stakeholders, it is of concern that they have not been implemented earlier. There is little purpose in pursuing endless consultation to achieve a consensus that may never be reached due to the fundamental divergence of interests of the various stakeholders. This degree of discussion has no redeeming features, and does nothing to further the goals of the DDA. All it does is burden all stakeholders with the risk and uncertainty of individual complaint driven enforcement of the DDA. As we have seen for the last 13 years, this approach has limitations on its ability to achieve the objectives of the DDA across the Australian community. The only other way to expedite enforcement of the DDA would be to arm HREOC with a more effective power to commence inquiries into potential breaches of the DDA of its own initiative. This proposal is currently the subject of some public debate and is beyond the scope of this article (Ozdowski 2002a).
Under the current consensus decision-making model, even when consensus is reached it means contentious issues are omitted from the disability standard, preserving the uncertainty that currently frustrates stakeholders in the present unregulated environment. One can only hope that stakeholders will be heard as they call for a conclusion to this cumbersome process and refocus on achieving the substantive objects of the DDA. The framework has been established, now action is required.
* Partner, Maddocks. This article is a revised version of a research paper written for the master of laws (LLM) at Monash University. The author would like to thank Beth Gaze, Senior Lecturer at Monash University, for her generous feedback on drafts on this paper and also the anonymous referees for their helpful comments.
1 In New South Wales since 1981, South Australia since 1981, Victoria since 1982, Western Australia since 1989, Queensland since 1992, the Australian Capital Territory since 1992, the Northern Territory since 1993 and Tasmania since 1998.
2 Statutory exceptions apply to excuse conduct that is otherwise unlawful under the DDA — for example, because it was undertaken to comply with the person’s obligations under certain prescribed laws or an order of a court (s 47, DDA). Currently, none of the statutory exceptions apply to disability standards (s 33, DDA).
3 An exemption is available to a person or organisation on application to HREOC and is granted in its discretion for a period of up to five years. An exemption exempts the person from a complaint of unlawful discrimination in relation to the conduct or activity covered by the exemption for the period of its operation (s 55, DDA).
4 Challenges to the validity of delegated legislation occur from time to time. An example is when the Federal Court scrutinised regulations purportedly made by the Governor-General under the Workplace Relations Act 1996 (Cth) (WR Act). The regulations were found to go beyond the regulation-making power conferred on the Governor-General in the WR Act and were therefore invalid: Hamzy v Tricon International Restaurants (t/as KFC) [2001] FCA 1589; (2001) 111 IR 198.
5 Other changes to the DDA were to include the concept of reasonable adjustment; a definition of education provider; and new provisions dealing with harassment and victimisation.
6 Their Honours also said of the Education Standard, prior to the enactment of the Disability Discrimination Amendment (Education Standards) Act 2005: ‘If, and insofar as, the Draft Standards indicate that the Act contains an obligation of reasonable accommodation, they misstate the law.’
7 This case considered the requirement of reasonableness in the Victorian legislation that is equivalent to the requirement in the DDA.
8 See, for example, Francey v Hilton Hotels of Australia Pty Ltd, where it was held that requiring a person who entered premises to tolerate environmental tobacco smoke was unlawful disability discrimination.
9 Section 122 prohibits a person from causing, instructing, inducing, aiding or permitting another person to do an act in contravention of the DDA.
10 The Transport Standard applies to all operators of public transport services and the conveyances they use to provide public transport services. The standard also applies to public service providers and to supporting premises and infrastructure.
11 Australian Standards are voluntary standards that set out minimum requirements for the activity dealt with in the standard. In many cases, the voluntary standards become legislative requirements through incorporation of the standard in legislation.
12 For example, if the works over three years affected more than 50 per cent of the volume of the building, an upgrade would be triggered: see the Protocol at 23.
13 Access Panels cannot determine claims of unjustifiable hardship. These can only be determined by the Federal Court or the Federal Magistrates Court.
14 According to the disability sector, ‘the Standard is too low, “mean spirited” or misinterprets the DDA’: see Seymour and Smith 2001.
References
Australian cases
Cocks v Queensland [1994] QADT 3; (1994) EOC 92-612
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78
Cooper v Coffs Harbour City Council (2000) EOC 93-089
Cooper v Holiday Coast Cinema Centres Pty Ltd (unreported, HREOC, 29 August 1997)
Cooper v Holiday Coast Cinema Centres Pty Ltd (unreported, HREOC, 18 May 1998)
Cooper v Human Rights and Equal Opportunity Commission [1999] FCA 180; (1999) 93 FCR 481
Francey v Hilton Hotels of Australia Pty Ltd (1997) EOC 92-903
Hall-Bentick v Greater Union Organisation Pty Ltd (2000) EOC 93-107
Hamzy v Tricon International Restaurants (t/as KFC) [2001] FCA 1589; (2001) 111 IR 198
Harris v Transit Australia Pty Ltd (1999) EOC 92-979
Maguire v Sydney Organising Committee for the Olympic Games (2001) EOC 93-123
Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
A School v Human Rights and Equal Opportunity Commission (No 2) (1998) 55 ALD 93
Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251
Victoria v Schou [2004] VSCA 71; (2001) 3 VR 65; (2004) 8 VR 120
Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349
Australian legislation
Constitution Act 1901 (Cth)
Disability Discrimination Act 1992 (Cth)
Disability Discrimination Amendment (Education Standards) Act 2005 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Occupational Health and Safety Act 1985 (Vic)
Workplace Relations Act 1996 (Cth)
Disability Discrimination Act 1995
US legislation
Americans with Disabilities Act 1990
Rehabilitation Act 1973
International legal materials
Declaration on the Rights of Disabled Persons GA res 3447 (XXX), 30 UN GAOR Supp (No 34) at 88, UN Doc A/10034 (1975)
Declaration on the Rights of Mentally Retarded Persons GA res 2856 (XXVI), 26 UN GAOR Supp (No 29) at 93, UN Doc A/8429 (1971)
Standard Rules on the Equalisation of Opportunities for Persons with Disabilities A/RES/48/96, 85th Plenary Meeting, 20 December 1993
Books, articles and other references
Access Board (2004) Access Board Issues New Guidelines for Accessible Design (23 July 2004) [Online] Available: <www.access-board.gov/ada-aba.htm>
Attorney-General (2002) ‘Industry standards to make banking more accessible’ news release (15 April 2002)
Attorney-General’s Department (2003) Proposed Disability Standards for Education (27 August 2003)
Australian Building Codes Board (ABCB) Statement for People with Disabilities [Online] Available: <www.abcb.gov.au/dsp_document_view.cfm>
Australian Building Codes Board (2001) Directions Report (December 2001)
Australian Bureau of Statistics (1998) Australian Social Trends 2001 [Online] Available: <www.abs.gov.au/ausstats/abs@nsf>
Department of Education, Science and Training (2005) Disability Standards for Education <www.dest.gov.au/sectors/schooleducation/programmes_funding /forms_guidelines/disability_standards for education>
Dictionary.LaborLawTalk.com Consensus definition [Online] Available: <www.encyclopedia.laborlawtalk.com/consensus>
Disability Discrimination Commissioner (1993) Issues Paper: Disability Standards under the Disability Discrimination Act (November 1993) [Online] Available: <www.humanrights.gov.au/disability_rights/standards/issues93.htm>
Disability Standards for Access to Premises (Buildings) 200X 2004 (21 January 2004)
Disability Standards for Accessible Public Transport Amendment 2004 (No 1)
Douglas R (2002) Douglas and Jones’ Administrative Law (4th ed) Federation Press
Food Not Bombs Publishing On Conflict and Consensus [Online] Available: <www.consensus.net/ocac2>
Guidelines to the Disability Standards for Access to Premises (Buildings) 200X, Regulation Impact Statement on Disability Standards for Access to Premises, A Process to Administer Building Access
House of Representatives (1992) Hansard Vol 184 at p 2750
House of Representatives (1999a) ‘Parliamentary debate of Human Rights Legislation Amendment Bill 1998’ Hansard (11 March 1999) per R McClelland MP at p 3759
House of Representatives (1999b) ‘Second Reading of the Bill by Attorney-General Williams’ Hansard (11 March 1999) at p 3746
House of Representatives (2002) ‘Second Reading of the Disability Discrimination Amendment Bill 2002’ Hansard (14 February 2002)
Human Rights and Equal Opportunity Commission (1999) World Wide Web Access: Disability Discrimination Act Advisory Notes (May 1999)
Ozdowski S (2002a) Disability Discrimination Legislation in Australia from a Human Rights Perspective: History, Achievements and Prospects (8 April 2002) [Online] Available: <www.humanrights.gov.au/disability_rights/speeches/history02.htm>
Ozdowski S (2002b) Statement in Human Rights and Equal Opportunity Commission Annual Report 2001–2002
Pearce D and Argument S (1999) Delegated Legislation in Australia (2nd ed) Butterworths
Productivity Commission (2004) Review of the Disability Discrimination Act 1992 Vol 1 (30 April 2004)
Seymour S and Smith G (2001) A Way Forward: Report of the Disability Sector’s Response to the Draft Disability Discrimination Education Standard (January 2001) [Online] Available: <www.dice.org.au/in.ddeed.html>
Standards Australia Ltd Standards Development — Consensus [Online] Available: <www.standards.org.au>
Tomasic R (1989) ‘Formalised consultation, delegated legislation and guidelines — “new” directions in Australian administrative law?’ (1989) 58 Canberra Bulletin of Public Administration p 158.
Web Content Accessibility Guidelines 1.0 [Online] Available: www.w3.org/TR/WAI-WEBCONTENT
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