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Productivity Commission Inquiry into the DDA

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The Disability Council, operating under the Community Welfare Act 1987, is the official advisory body to the NSW Government on disability issues and policy and acts in NSW as Commonwealth Disability Advisory Body commenting on Commonwealth issues that affect people with disabilities and their families in NSW.

The Disability Council's submission focuses on the following key points.

• No accurate socio-economic and general demographic data exists on people with disabilities' location and until such statistics exist and a measuring tool is developed for the extent of unmet need and disability discrimination all attempts to determine the state of change are questionable.
• People with disabilities are denied the rights of citizenship, the right to equal participation and the support to ensure such rights by the failure to recognise differential access and forms of participation as valid.
• Equity of access and social participation are central to the notion of citizenship and the aim of the government should be to ensure the social, attitudinal, architectural, medical, political and economic environment is sufficient to address the differences of all individuals.
• Several social changes that have benefited people with disabilities have occurred as a direct result of the DDA including unintended consequences, a 'stepless' society benefiting mothers with prams and the elderly by improving access to the built environment.
• The DDA's greatest impediments stem from it being complaints based, the onus of proof being placed on the complainant, discrete acts of discrimination being reviewed thus failing to address the systemic nature of discrimination.
• A further problem of the complaints basis of the legislation is the plethora of case law and precedent as the numerous individual cases that are successfully mediated cannot affect case law or set precedent even when they are closely related to a case being contested before the court.
• The DDA maintains the 'medical/deficit' definition of disability, locating the disability (rather than the impairment) with the individual rather than in the society's inability to address difference.
• This 'deficit' definition of disability, along with lack of exposure to issues affecting people with disability allows many social myths and value judgements to be imported to the legal system where legislation, intended to protect the rights of people with disabilities, can be used to legitimate abuses against them.
• The existence of 'unjustifiable hardship' as a defence abrogates the responsibility to ensure citizens' rights to participation and equitable treatment and the DDA is the only Commonwealth anti discrimination legislation, with such a caveat.
• The granting of exemptions to coverage by the DDA has also compromised its integrity.
• HREOC yet requires the legislative authority to ensure Action Plans are written to an acceptable standard, to educate departments in their drafting or to monitor their implementation.
• The existence of the defence of 'unjustifiable hardship' is inappropriate in omnibus legislation and for this reason above all others Council holds that omnibus legislation should be supported.
• Standards allow services to avoid an action if they meet specified conditions, and the continued use of unjustifiable hardship within the Standards allows services not meeting these conditions to justify non compliance.
• Legal complexities present difficulties for most complainants and they are compounded for those from Aboriginal Torres Strait Islander and Non English Speaking Backgrounds.
• The complaints process is currently so protracted that many people with disabilities choose not to lodge a complaint because it is considered that it would take too long to be heard while others refrain from complaining because proof of discrimination has to be so detailed and documented.
• There have been significant problems of process and these are partly attributable to lack of resources and a lack of commitment by Government to effectively consult the disability community.
• A public awareness campaign is needed to counter stigma, harassment and vilification as much as discriminatory practice.
• The DDA needs to be strengthened to require penalties for non-compliance by developing an enforcement role much like an Inspectorate reviewing breaches of Occupational Health and Safety legislation.
• An enforcement body should be established with the role of developing an audit tool, annually reporting to Parliament on the effectiveness of Australia's efforts to address systemic discrimination and discriminatory practice.
• More detailed data on people with disability and the extent of discrimination and should be used to form the basis of a State of the Nation Report explaining the impact of disability at a social, ecological as well as an economic level and this might be well used to inform public debate and policy.

Recommendations

1. A social audit is commissioned to identify broad capturing data and indicators of the prevalence of disability discrimination and then track whether improvements are made or maintained.
2. A review of legislative definitions of disability is conducted and a consistent definition adopted which acknowledges the systemic nature of disability.
3. 'Unjustifiable hardship' is abolished as a defence under the DDA and industry is instead assisted to meet its social obligation to people with disabilities.
4. Exemptions under the DDA are abolished as exemptions do not exist in either the Sex Discrimination Act or the Racial Discrimination Act and their existence allows continued abuse of the right of people with disabilities to equal status as participating citizens.
5. The role HREOC plays in the retention of Action Plans is extended to include an educational and monitoring role in the development and review of Action Plans.
6. Protocols are developed to identify the parameters of 'reasonable accommodation' required by the DDA.
7. The Attorney General reviews the terms of reference of the Disability Standards Project to allow members to accurately reflect the views of the disability community even when they oppose the development of specific standards.
8. The Attorney General approves a wider more comprehensive debate on the value of standards under the DDA which includes representation from local (as well as national) representatives of people with disabilities and people with disabilities themselves.
9. HREOC's role is expanded to educate the public on the extent of discrimination and appropriate ways to reduce/address it and that punitive measures are adopted and enforced to address ongoing abuse of people with disabilities right to equally available and timely services.
10. A body is established with a role to audit efforts to address ongoing disability discrimination and report annually to Parliament on progress made.
11. The Commonwealth Disability Strategy is extended so that its coverage includes all business and all Australians.
12. Employment opportunities for people with disabilities are improved by extensive training for prospective employees and employees in junior positions with disabilities likely to have the skills for higher paid positions.
13. A quota system is adopted in Government to ensure the percentage of Government employees with disabilities equate with the percentage of people with disabilities at workforce age.
14. Businesses are encouraged to employ a percentage of employees with disabilities commensurate with the percentage of their market who are people with disabilities.
15. Employment opportunities for people with disabilities are improved by extensive training for prospective employees and employees in junior positions with disabilities likely to have the skills for higher paid positions.
16. Public awareness of disability is improved by public debate and discussion, promoting the benefits of employing people with disabilities and the social obligation to address discriminatory practice.
17. A State of the Nation Report is developed to fully document the social roles and experience of people with disabilities.

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