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Article
Law Society Journal (NSW,
Australia), November 1995, page 42. Cite
as (1995) 33 (10) LSJ 42
What the
Disability Discrimination Act means for
solicitors
By Matt Laffan
Matt Laffan BALLB is a solicitor with
the NSW Office of the Director Of Public
Prosecutions.
IN 1993 THE COMMONWEALTH Government's
Disability Discrimination Act 1992 (DDA)
began to take effect. It endeavours to make
the community face its collective responsibility
to share its entertainment, technology,
transport and culture with disabled people.
As around 18 per cent of Australians have
a disability1 there are a great number of
people who can benefit from this Act. However,
it is not simply disabled people who are
affected by the DDA; the Act affects a variety
of groups within our community, as it obliges
employers, governments and service providers,
to ensure that they are providing an environment
which is accessible to the disabled.
Therefore, whether you are
a sole practitioner, a solicitor in a suburban
or country firm, or a solicitor from a large
city firm, it is in your interest to be
familiar with the DDA, as it is increasingly
likely that you will be asked a question
about the DDA, either because you have a
client who is disabled,2 or alternatively,
a client who has unwittingly discriminated
against a disabled person or group.
The DDA binds all tiers of
government in an attempt to ensure there
is a uniform recognition of the disabled's
rights to equality at all levels. Similarly,
private companies, sporting bodies, clubs,
associations and private citizens, including
employers, teachers, service providers,
landlords, land owners and building owners
are also subject to the DDA.
Where a disabled person feels
as if they have been treated unfairly, or
discriminated against on the basis of their
disability, they are able to make a claim
pursuant to the DDA. An associate of a disabled
person can also make a claim. The term associate
encompasses anyone who has a close and on-going
relationship with a disabled person. This
means a husband or wife, flatmate, relative,
partner or colleague may make a claim under
the DDA on a disabled person's behalf. Importantly
this recognises two things: that a disabled
person will sometimes have to rely on someone
else to take up the fight on their behalf;
and that when a disabled person is discriminated
against, it very often effects the associate
adversely as well.
As I am both a solicitor
and disabled (I have been confined to an
electric wheelchair since the age of ten)
I am particularly aware of the impact that
the DDA can have on our society as it aims
to put an end to disability discrimination.
Direct, indirect discrimination
Discrimination can either
be direct or indirect. The former happens
when a person is, or is about to be, treated
less favourably than others because of their
disability, or their associates disability.
The latter occurs when a `condition', such
as a policy, or procedure, practice or physical
barrier, stops a person with a disability,
or an associate, from doing something they
wish to do.
Our own NSW Supreme Court
building exemplifies such conditions. Its
lifts are not equipped with wheelchair accessible
or visually impaired buttons (unlike the
Downing Centre). The Banco Court, in which
CCA matters are heard and where my admission
ceremony took place, is wheelchair inaccessible;
I had to rely on friends to lift me down
into the court. While the Bails Court, which
underwent extensive refurbishment in 1994,
is also inaccessible, as there is a step
leading to the bar table, which means that
the likes of myself have to rely on a `learned
friend' to get to and from the bar table
in order to represent a client or the Crown.
As is the case with people
generally, disabilities come in different
forms; they can be hidden or very obvious,
they can be confronting or disguised. Much
of the discrimination that occurs in our
society against the disabled is unintentional,
such as in the Supreme Court, for although
people are generally very accepting of the
disabled's rights to equality, they simply
don't appreciate how particular actions
or infrastructure can be discriminatory.
The fight against disability
discrimination is made difficult by the
fact that disabled people often rely on
others for assistance, be it of a financial
or a physical nature. That very dependency
on other people and groups limits the extent
to which they can exert an autonomous demand
for change. The DDA is about satisfying
that need, by forcing society to come to
terms with the disabled's rights by making
the requirement for change compulsory. It
puts all concerned on notice that discrimination
will no longer be tolerated, be it unintentional
or otherwise.
A User Guide To The Disability
Discrimination Act3 is a new, concise booklet
where author Sue Tait takes the reader,
step by step, through the DDA. Tait explains
the various definitions within the DDA,
what type of complaints can be made pursuant
to it and what type of discriminatory acts
are exempt from prosecution. Having been
published this year its sample complaints
are contemporary and relevant for anyone
who might be wondering whether they have
a client who has been discriminated against.
Tait sensibly warns potential
complainants to consider carefully whether
the circumstances of their complaint warrant
an action under the DDA and she describes
the best way to go about evaluating one's
objectives. She promotes caution, while
also encouraging people to pursue their
rights. Tait explains the procedure one
must follow when making a complaint.
Before any complaint reaches
the court under the DDA it goes to the Disability
Discrimination Commissioner.4 The Commissioner
investigates the matter and endeavours to
get the complainant and the respondent to
agree as to the best way to resolve the
problem. If there is no agreement as to
what is to be done, the Commissioner sends
the complaint on to the Commission for a
hearing. Tait explains how best to draft
a complaint to the Commissioner and how
best to prepare a matter for a hearing.
The Users Guide is an essential
reference for just about every solicitor
in the private sector, as it is likely that
one will have to consider the role of the
DDA at some future stage for a client, be
they complainant or respondent.
NSW Disability Discrimination
Legal Centre
Where a solicitor feels as
if they might require expert advice as to
how to approach a particular problem on
a client's behalf, they can rely on various
bodies to offer sound information. Such
an organisation is the NSW Disability Discrimination
Legal Centre (DDLC). This incorporated community
legal centre is associated with the Kingsford
Legal Centre.
The DDLC's charter is to assist
people with disabilities, their associates,
and organisations representing people with
disabilities and community legal centres,
however, it will not assist respondents.
Each one of its actions are based on three
basic premises:
* to assist people with disabilities to
maximise the benefits from the DDA;
* to ensure that people with disabilities
are not discriminated against; and
* to aim to ensure that people with disabilities
have the same fundamental rights as the
rest of the community.
The DDLC is funded by the
Federal government as a special project
office of the Legal Aid and Family Services
of the Attorney General's Department and
the Legal Aid Commission. The DDLC employs
a full time legal advocate, a coordinator/advocate
and a part time administrator. As is typical
of such community orientated legal centres,
the DDLC depends greatly on volunteers to
ensure that it meets its goals.
Ms Michelle Hannan is the
full time legal advocate with the DDLC and
she and her team have had major successes
under the DDA. Their successes illustrate
how effective the legislation is in ensuring
public and private sector organisations
provide the same services to disabled people
as they do for able bodied people.
DDLC's recent successes
under the DDA5
DPI v Telstra
The DDLC had a major win for
people with a profound hearing loss against
Telstra this year. The decision was not
only of enormous benefit to the hearing
impaired, but for disabled people generally,
as it made great advances towards claiming
from service providers equal rights for
disabled people.In this matter the DDLC
acted for Disabled Peoples International
(Australia) Limited (DPI). DPI was representing
a class and this was the first representative
complaint to go to a hearing under the DDA,
the class represented being all those who
have a profound hearing loss.
DPI claimed that Telstra was
discriminating in its provision of services
because it did not provide access to the
telecommunications network to those with
a profound hearing loss. Telstra provides
such access for people with normal hearing
via a standard T200 handset telephone. The
DPI pointed out that access to Telstra's
services for those with a profound hearing
loss could only be provided by telephone
typewriters (TTY) since the T200 handset
was impossible for them to use.
The claim was essentially
that Telstra should provide those people
with a profound hearing loss a TTY free
of charge. Telstra argued that the provision
of a service, such as telecommunication,
by an alternate means, through a TTY rather
than a T200, amounted to a different service.
This had never been tested before. Nor had
the definition of the term unjustifiable
hardship, a term within the DDA which is
used as a means of arguing why a service
provider cannot be expected to change something
it has already done because of the cost
involved. The case also tested the idea
of a representative complaint and what was
required to satisfy that definition under
the DDA.
The DDLC received judgment
in this matter on Tuesday 20 June 1995.
The Commission found that the provision
of a service by an alternate means does
not amount to a different service. It also
found that there was no unjustifiable hardship
to Telstra in providing the service, even
though it would cost millions of dollars,
because the cost was weighed against many
other factors, including the benefit to
the class, the fact that Telstra already
makes a profit in the billions, and that
Telstra would also receive income from the
provision of the TTY service.
The Commission also referred
to the fact that Telstra had failed to review
its service since the DDA had been implemented.
This was the case even after Telstra had
received complaints from numerous interest
groups. Its criticised Telstra for remaining
in a state of "lethargy and intransigence".
As a result it is now obvious that service
providers have an obligation to review their
standards, with regards to making their
service accessible to the disabled, even
if they have not received any official complaints.
The DDA simply puts them on notice that
standards are expected to be met.
The Commission made an order
as to what Telstra must do to remedy this
discrimination on 6 September 1995. The
order granted relief to the complainants
by obliging the respondents to provide TTY
to persons who are certified by an audiologist
to be profoundly deaf. Although the DDLC
was disappointed with regards to the way
in which the Commission held these TTY's
were to be purchased, it is suffice to say
the major impact of the decision was of
a great benefit to those with a profound
hearing loss and to disabled people generally,
as it once and for all proved that service
providers have an obligation to offer the
disabled members of our community the same
rights of access to their services as they
do to able bodied people. Telstra has already
lodged an appeal in the Federal Court.
Magro and PWD v STA
In order for a person in a
wheelchair to travel around the city, one
has to rely on using one's own vehicle or
catching a taxi designed for the disabled.
Buses are not an option. However, in October
1994, two separate complaints were lodged
against the State Transit Authority pursuant
to the DDA which will have the effect of
making sure that that no longer remains
the case.
Mr Steve Magro, a person with
quadriplegia and a member of Australian
Quadriplegics Association (AQA), and an
organisation by the name of People With
Disabilities (PWD) (NSW) Inc, lodged a representative
claim on behalf of all people in NSW who
use wheelchairs or similar mobility devices,
made separate applications against the STA
on the issue of making buses wheelchair
accessible. The DDLC acted for both complainants.
Magro lodged a complaint against
the STA when he noticed that a tender they
had to supply 125 new buses had no specifications
attached to it that insisted that the new
buses be accessible to people who use wheelchairs.
PWD's complaint related to a contract that
was already in place for three hundred buses,
none of which were wheelchair accessible.
One hundred fifty of those buses had already
been delivered, so PWD's case dealt with
the remaining 150 yet to be provided.
In both cases the complainants
sought, and were granted, interim determinations
to stop the STA from further proceeding
with the tender or order in anyway unless
the new buses were accessible to wheelchairs.
They sought such an order because they feared
the new buses would be on the road in an
inaccessible state before the case could
be heard.6The parties had a conciliation
before HREOC and then engaged in negotiations
amongst themselves. The STA wanted to confirm
orders of buses so that they could be on
the road as scheduled from early 1996. They
could not do this while the interim determinations
were in place. The complainants refused
to withdraw their complaints unless the
buses were going to be accessible.
(In the meantime the Federal
Attorney General's department has been developing
standards for public transport. These standards
will be passed by Parliament. Once the standards
are in place anyone who meets the standard
set will have met their obligations under
the DDA. Those who don't will be in breach
of the Act. The standards are expected to
be in place by July 1996. It is not known
whether transport providers will have to
comply with the standards immediately or
whether they will be allowed a `phasing
in' period.)
On Saturday, 15 July 1995
the parties signed an agreement and settled
the matter. DDLC believe it settled very
favourably. Standards on transport are due
to be implemented in approximately July
1996. These standards might allow for phased
implementation so that in effect accessible
transport would not be on the road for another
few years after that. The settlement reached
with the STA states that it will trial certain
methods of access on new buses it is bringing
in over the next year and once the standards
are introduced they will retrofit all the
buses which are the subject of the DDLC
complaint. It will also make sure that all
buses which were the subject of complaint
and that come onto the road after the standards
are introduced, comply with the standards.
This will occur even if those buses would
not have been subject to the standards because
they would have been coming onto the road
during a phasing in period.
In effect the agreement means
that there will be 275 more buses on the
road that are accessible than there would
have been if the standards alone had been
relied upon. The STA estimates that the
buses will be coming onto the road from
February 1996 at the rate of approximately
one per week.
Miller v SRA
The State Rail Authority has
also had to come to terms with the DDA.
In this particular case a University of
Newcastle student lodged a complaint and
sought an interim determination against
the SRA, because it was proposing to build
a railway station to service the university
which would be wheelchair inaccessible.
The DDLC obtained an interim
determination in this matter that prevented
the SRA from accepting tenders unless they
provided such access. The SRA notified that
it would comply with this interim determination
and the matter was referred directly to
a hearing. The matter settled with the SRA
agreeing to build an accessible station
at the university. A short time later the
then Minister for Transport, Mr Baird, announced
that any new railway station built in NSW
would be accessible. It is hoped that this
will be supported by the new Minister.
Summary
The DDA is much more than
a politically correct notion of high ideals.
It is a statute which promises to bring
about real change. As the above cases illustrate,
the DDA carries a great deal of authority
and as it becomes more widely recognised
solicitors will have to be aware of the
possible effect that it might have on their
client, whether that client be a developer,
service provider, local council, or a disabled
person. The best results under the DDA will
be achieved when both parties approach it
without the adversarial tradition of our
legal system, but with a genuine desire
to resolve the problems at hand. It is not
designed to punish parties, but rather to
bring about equal opportunities for the
disabled, so that they can participate in
our community at all levels. Such a goal
can only be good for our community in the
long term and if we, as solicitors, aim
to provide sound advice with that in mind,
we will be contributing something positive
to our society, no matter who it is we are
representing.
END NOTES
- This finding was made in a 1993 Survey
of Disability, Ageing and Carers by the
Australian Bureau of Statistics. A person
was identified as having a disability
if they had one or more of a group of
selected limitations restrictions or impairments
which had lasted, or was likely to last,
for six months or more.
- Disabilities include physical, intellectual,
sensory, neurological and psychiatric
disabilities, as well as HIV/AIDS or other
disease causing organisms.
- Published by Villamanta Publishing Service
in Victoria 1995.
- For people who live in NSW, ACT, QLD,
TAS and NT the complaint should go to
the Human Rights & Equal Opportunity Commission
(HREOC).
- The following information was provided
by Michelle Hannan of the DDLC.
- Mr Magro's interim determination was
granted 13.10.94. PWD's was granted 29.11.94.
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