Who is Laughing Now?

Our disability discrimination laws are a laughing stock. They have to be the most ridiculous and toothless laws that exist anywhere in a comparable country in the Western World. The residents of an Australian suburb that took their Council to court will testify to that. This is a tragic tale of a group of people with a disability who tried to stick up for their rights. They discovered that the council had failed to comply with requirements of the Australian Disability Discrimination Act (DDA). As a group they decided to take the council to court. They lost on a technicality. Consequently Australia is now the laughing stock of the world in regard to disability discrimination.

This group of people with a disability proved that the Council broke the law. They apparently had their case thrown out because they complained as a group. The Australian DDA states that only individual complaints can be heard. Class action or complaints are not allowed. So the judge has allegedly ruled their case to be void. Never mind that the council is putting up barriers to disability access contrary to the DDA, you can’t complain as a group and therefore the Council is in the clear. To add insult to injury, the group that complained now find themselves faced with having to pay court costs in excess of $50 000. I really hope they sue their lawyer because any mug that knows anything about the DDA will easily discover the law only allows individual cases.

The DDA in Australia is essentially fairy floss. To activate it individuals must first complain. If they don’t complain then organisations such as the Council can more or less do as they please. The DDA in Australia only allows individuals to complain. What this means is if there is an issue that impacts on 10 000 people with a disability then they must all complain individually. You can’t launch one complaint for 10 000 people which seems logical; you can only complain individually.

Theoretically if 10 000 people complained on the one issue the Australian Human Rights Commission would have to deal with each complaint individually. The efficient way would be for 10 000 to come together and make one complaint. But NO! In Australia we have the ridiculous and costly situation where each complaint can only centre on one person.

What is more the Australian DDA is not a prescriptive law. It sets out standards that organisations are supposed to follow. However, in Australia organisations only have to follow the standards if they can afford to follow them. They can argue Unjustifiable Hardship and cry poor. What they must then do is demonstrate to the courts why they cannot afford to provide access. It is a lengthy and costly process.

Most individuals who make complaints cannot afford legal representation. This alone prevents many people from complaining under the DDA. What is worse, organisations like the Council CAN afford legal representation and will often get the best. They will draw out cases as long as possible. Many individuals know that this may happen and fear complaining lest they be out of pocket.

Indeed there was a recent story of a deaf person in NSW who took a cinema to court through the DDA for not providing captioned movies. He mysteriously withdrew his case at the last minute. Rumour had it that the cinema paid him out to keep quiet. More likely he realised the ongoing cost of the case would be beyond his financial resources and backed out. I am sure this has happened to many people with a disability wishing to complain under the DDA.

The most well known case involving deafness in Australia centred on Gail Smith and her deaf daughter. Gail and her husband believed that the Queensland Education Department had broken the law under the DDA because they did not provide sign language interpreters for her daughter. She originally lost her case at great financial and personal cost.

To get support for her daughter she had to move literally from one side of Australia to the other. Her family had to uproot leaving friends and support networks just so that their daughter could get access to education. The stress and financial strain must have been enormous.

Eventually Gail appealed the case findings and won allowing her to move back to her family and friends and forcing the Queensland Education Department to provide for her daughter. To get to that point it took several years, lots of money and great personal stress.

One may argue that this shows that the Australian DDA does, in fact, work. What poppycock. No person should have to endure what Gail and her family endured. In Australia if you steal you break the law. If you murder you break the law. The law is prescriptive in most areas. In most cases the law clearly states what you can and cannot do. It is as simple as “though shall not steal”, “though shall not kill.” What is more you clearly know what will happen if you do.

Yet our disability laws state basically that you have to try, you have to show that you did your best. If an organisation can do that they can metaphorically get away with murder. Imagine the outcry if someone robbed a bank and his defence was, “I tried not to” and the judge said, “Yes I can see you did, off you go back to mum.” There would be an outcry of epic proportions.

The Council broke the law and got away with it. The fault is entirely with Australia’s loose and weak DDA laws. It is time to come up with a law that clearly prescribes what organisations need to do in terms of disability access. The current laws fall well short of this and makes Australia look like a joke in the eyes of the world. I can guarantee you the Council in question get the joke and are laughing all the way to the bank.

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2 thoughts on “Who is Laughing Now?

  1. Though there is nothing to stop a group of individuals pursuing a matter of disability discrimination through the legal system. For example, Joe Smith and Beth Jones and John Hayes could get together if they’ve all experienced the exact same type of discrimination (e.g. inaccessible bus stop in their street) and join together in one matter.

  2. Thanks Al. I believe the issue here is that they complained as a group through an advocacy agency rather than as a group of individuals. If they all complain as individuals the Human Rights Commission may agree to hear their individual complaints as a group.

    It is still bizarre being able to individually complain as a group rather than complain as a group through a support agency. The difference is so minimal its ridiculous.

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