24 October 2024
Michelle Rowland
Attorney General
Robert Garran Offices
3-5 National Circuit
Barton ACT 2600
Dear Ms Rowland
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Review of the Disability Discrimination Act 1992
Thank you for the opportunity to contribute to the Review of the Disability Discrimination Act 1992. Our submission includes feedback from the Whitehorse Disability Advisory Committee, a dedicated group of City of Whitehorse community members with lived experience of disability as well as Council Officers with speciality in this important space.
In alignment with the remit of Victorian local governments the following submission is focuses on the following sections:
- Part 1 Updating understandings of disability and disability discrimination.
- Part 2 Positive duty to eliminate discrimination.
- Part 3 Encouraging inclusion of people with disability in employment
- Part 4 Improving access to justice – offensive behaviour and vilification protections.
- Part 6 Modernising the Disability Discrimination Act – Disability Action Plans
Yours sincerely
redacted
Zoe Quinn
Manager Communities, Engagement and Integrated Planning
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Part 1: Updating understandings of disability and disability discrimination.
We support the review of the Disability Discrimination Act (DDA), inclusive of key definitions and obligations. Modernising the Disability Discrimination Act to include human rights and social models of disability would better reflect Australia’s obligations under the United Nations Convention on the Rights of Persons of Disabilities (UNCRPD) and current practice.
A strength of the current definition of disability contained in the DDA, albeit couched in deficit language, is its adaptability to new terms and emerging disability types. The current definition captures the impact on the body and its functions rather than using limited classification types or terms. Members of the Whitehorse Disability Advisory Committee found the DDA definition difficult to read and believe that whilst disability classifications might be easier to read, they do not sufficiently cover emerging language or rare types of disability. The definition of disability must reference that a person may experience more than one form of disability and note that the impact of disability on a person’s life is subject to change over time.
Consistency of definitions across disability related legislation at both federal and state levels, is key to achieving better outcomes for people with disability. Consistent definitions will work to reduce barriers to accessing other services and supports including those funded by the NDIS, and across employment, education, justice, health and community settings.
Addressing Intersectionality
The lives and experiences of people with disability are unique and complex, as are the responses to people with disability by others in the community, organisations and duty holders.
Ensuring that people’s human rights are protected, and intersecting identities are considered in all discrimination claims regardless of the initiating source of the claim is imperative when seeking to address all forms of discrimination through fair and equitable access to justice. This approach would create a ‘no wrong door’ approach and provide better access to legal redress and resolution for people with disabilities, especially where multiple or compounding issues present for the person with disability.
Life Areas
The definition of areas of public life should be expanded to include internet or social media platforms.
Part 2 Positive duty to eliminate discrimination.
Obligations under the Victorian Equal Opportunity Act 2010 and Victorian Charter of Human Rights and Responsibilities Act 2006 include a positive duty to address discrimination. Applying a positive duty to eliminate disability-based discrimination on all duty holders would align and strengthen these requirements.
Duty holders, including Councils, may require resources and support to transition to new obligations under the DDA. This could include conducting an independent audit of current policies and practices across the organisations operations to identify risks of non-compliance.
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This would provide the opportunity to develop a detailed understanding of the new obligations as well as address any areas of non-compliance via the Disability Action Plan.
To communicate legislated changes and promote obligations, a sustained capability lift would be required. This would include staff training, awareness raising and actions to further embed inclusionary practices in organisation culture and practice. To create environments where people with disability thrive, Council Officers would appreciate the Australian Human Rights Commission developing clear learning materials and resources, with examples relevant to the context of local government.
Councils are uniquely placed to work with local community organisations, groups and businesses to improve understanding of changes and obligations under the DDA. This work, with appropriate resourcing, can include general awareness raising campaigns, community workshops or targeted projects delivered in partnership.
Part 3 Encouraging inclusion of people with disability in employment
Our organisation strives to provide adjustments to ensure people with disability have access to our services, programs and employment opportunities. Expanding adjustment criteria may increase the costs to Council such as making physical changes to the environment and expanding the range of accessible information.
It is important that the person with a disability is the focus of all adjustment discussions and decisions, and these are supported by clear documentation. It is important that the DDA addresses practices where the impact on peers or others is a determining factor in the provision of adjustments.
The removal of the term ‘reasonable’ may increase the number and range of adjustments requested which may impact organisational resourcing. To better understand the resource implications and inform best practice, sharing collated adjustment data should be considered by the Australian Human Rights Commission as the intended governing body.
Outside of financial hardship, consideration needs to be given to how to manage situations where, although agreed to, the requested adjustment cannot be provided in a timely manner due to issues outside the organisations control and may impact person with disability. An example of this could be supplier product shortages.
Expanding the factors considered by employers when determining if an employee can carry out the inherent requirements of particular work.
The current DDA limits employment to existing employees, this should be amended to reflect prospective employees and encapsulate the recruitment, onboarding and tenure of employment.
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A focus on the inherent requirements of employment positions is likely to create more accessible position descriptions. It is anticipated that a review of the inherent functions of each role will take considerable time to complete and implement. This will benefit not only people with disability but others in the community who experience language barriers. Guidance on what needs to be considered, and examples of best practice position descriptions would be appreciated.
Part 4 Improving access to justice.
People with disability have the right to a fair and equitable justice system which include an expedient means to address disability discrimination complaints. With the changes proposed in the review of the DDA issues paper, it is probable that additional complaints will be raised, and new provisions tested. Additional resources may be required to manage any increased demand on complaint management and consideration given to the possibility of increase liabilities for duty holders.
Currently, the protection of rights and addressing discrimination requires a person with disability to report the discrimination which can be a protracted and costly experience. This presents a systemic barrier to justice. This may be alleviated by the proposed introduction of a positive duty, removal of the reasonableness element and shifting the burden of proof from the person with a disability to the duty holder which aligns with the approach in the Fair Work Act.
Expanding the DDA to include protections from vilification, harassment and other offensive behaviour is supported. This should include provisions for where this is experienced on social media platforms and align with the work undertaken by the E-Safety Commission to protect children and young people with disabilities.
The DDA should explicitly recognise digital and online environments within its scope. Obligations should extend to social media, websites and digital platforms, requiring compliance with recognised accessibility standards (such as Web Content Accessibility Guidelines), and protection from online vilification and harassment.
Discrimination complaints including those relating to the proposed protections from vilification, harassment and other offensive behaviours must be expanded to include provisions for:
- groups of people with disability to lodge complaints against a single or multiple entities.
- for complaints to be lodged to address systemic barriers.
Exemptions
Exemptions to the DDA may create unintended consequences for people with disability as the exemption may halt progress towards more inclusive practices.
For example, people with disability continue to face barriers to accessing public transport despite the presence of the Transport Standards. Repeatedly Victorian Councils have advocated for better accessibility in public transport projects where lifts have been installed but no ramps or vice versa.
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It is recommended that all exemptions granted under the DDA, or its Standards should have clear timeframes and require a plan for working towards achieving the goals of the DDA. Exemptions should be fiercely monitored with the expectation that progress will be made towards greater accessibility and increased inclusionary practices.
Part 6 Modernising the Disability Discrimination Act – Disability Action Plans
Victorian Local Governments, including Whitehorse City Council, have developed and delivered Disability Action Plans across multiple decades significantly contributing to the accessibility and inclusion of people with disability in the community. We support the alignment and strengthening of Disability Action Plans requirements as a vehicle to build a more inclusive and accessible community.
Almost all state jurisdictions require that public authorities, including local government, develop a Disability Action Plan that addresses access to services, programs and the built environment, promoting inclusion and participation in the community, reducing barriers to employment, addressing discrimination and information access. It is imperative that Disability Action Plan requirements retain sufficient breadth for local governments and other organisations to develop actions that reflect their operational environment, local priorities and available resources.
In Victoria, the proposed Disability Inclusion Act would see the introduction of a commissioner and disability action plan reporting framework. It is important that there are not multiple and or different reporting requirements created at federal and state levels as this significantly impacts the resourcing of duty holders. Consideration should be given to the allocation of dedicated staffing resources for the development, implementation, evaluation and reporting against disability action plans in all local government bodies.
Prior to the introduction of the NDIS, Victorian Local Governments received state funding under the Building Inclusive Communities Program. The Building Inclusive Communities program created a dedicated full-time position specifically focused on creating accessible and inclusive communities. This relatively cost-effective model or similar could be reinvigorated at a national level. Whilst superseded by the Disability Royal Commission, the final report of the Inquiry into social inclusion and Victorians with disability / Family and Community Development Committee provides a detailed analysis of the Building Inclusive Communities Program and the role of local government in the inclusion of people with disability, including Disability Action Plan frameworks.
Resourcing
The review of the DDA heralds significant change and will require on going dedicated resources to ensure all organisations meet legislated obligations under the DDA. It is recommended that the Australian Government provide time-limited grant funding and targeted capacity-building programs to support local governments in implementing new obligations under the DDA. Dedicated funding would ensure councils can effectively transition to new compliance and reporting frameworks.
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