A Day of Mourning

mournThis week was Australia’s Disability Discrimination Act’s (DDA) 25th birthday. At 12 pm, on the day, Australia’s people with a disability commenced one minutes silence to mark its passing.

Twenty five years ago Australia passed a law that effectively sold out the rights of people with a disability. And so we mourned.

It was not always like that. When the DDA was passed there was much optimism. Indeed in the early days of the DDA much was achieved. You see people did not really understand how the DDA worked. They thought that they could not ever again discriminate. So in a mild panic began to grant access.

Little gains began to happen. Transport became a bit more accessible. Captioning and interpreting for the deaf started to become more common and accepted, access to university and further education improved, buildings became more accessible and so on. As a consequence people with a disability felt that they at last had recognition and a bit more power.

But very soon people without disability cottoned on that the DDA was actually a toothless tiger. As a law it was terrible. The paper it was written on made good toilet paper. Fitting really given that the DDA is a shit law.

The DDA has this weird concept of reasonable adjustment. But a reasonable adjustment really has no definition. It is supposed be something that a person or organisation does that provides better access and inclusion for people with a disability.

But one persons reasonable is one persons too much and visa versa. Those in the know will know that the rich cinema chains are protected from providing open captions to all sessions because the awful Captiview system is seen as a reasonable adjustment, even if it does not work properly – Those not in the know, watch the video at the end of this article.

Let’s say a Deaf person wanted interpreting for his/her hospital appointment. Reasonable one would think.  But not according to the hospital. For them reasonable might mean a family member facilitating conversation or the doctor writing notes to the deaf patient. Technically either interpretation could be right. Sounds daft doesn’t it? But that’s how things often pan out.

If the hospital can demonstrate that they have consulted with the deaf person about their needs this is  seen as meeting a legal obligation.  The hospital can simply say, “We asked, we talked, we offered alternatives but could not agree. Silly deaf person wouldn’t accept our offers of support. And gee, they said we would have had to pay for the interpreter, no way!”

Now I know I am being flippant but really this is what happens. Organisations, hospitals often, just simply refuse to provide. (Some are actually very good and willing to provide access, so if you are reading this and work in one of those good hospitals please do not take offence.)

If Deaf person and hospital cannot agree what  next? Well Deaf person has to make a complaint to Australian Human Rights Commission or the State Equal Opportunities Commission. Complaint received conciliation is then organised between Deaf person and hospital. But here’s the thing:

  1. Before complaint is accepted deaf person must show that they made attempts to resolve the issue with the hospital.
  2. Hospital has no obligation to attend the conciliation and can, if they want, simply refuse to participate.
  3. By this time Deaf persons appointment is long gone and for all we know they poisoned themselves by taking the wrong drug dosage because they did not really understand what the doctor said.

What happens next if organisations like a hospital refuse to come to the table? Well the Deaf person has to go to court to try and get a decision made as to what the hospital must provide. The cost of this is apparently capped at $20 000 for the people with a disability who choose to go down this path.

Because people with a disability, 45% who live at or below the poverty line, just have a spare twenty grand lying around. Of course hospital with its high flying lawyers don’t have this problem. So usually what happens is everything stops there. Deaf person gets nothing. Hospital gets away with virtual blue murder. Replace hospital with any similar organisation, like a Council for example, and you can write this example in exactly the same way and it will be just as relevant.

I know this for a fact. I worked for a council out the very East of Melbourne and tried to get them to the table for discrimination, victimisation and bullying. I complained to state Equal Opportunity and the council simply refused to come to the table. Next step court. With all the risks and stresses that would have involved I simply dropped it.  It is just too hard. But this is what we were served up when the DDA was passed 25 years ago.

Then we have the standing joke which is Unjustifiable Hardship. An organisation simply needs to say that they cannot afford it and usually they get off scot free.  “I need interpreters” The response can legally be  “Love to but sorry I cant pay cos I cant afford it.”

You mark my word any number of organisations hide behind this loop hole in the law. Sure you can take them to court and get them to justify that they cannot pay but who can afford that? There is the likelihood, and it has happened often, that the courts simply side with the organisation or person claiming hardship. Ok, I know there have been some wins but the risks are enormous and most people with a disability do not have the resources or wherewithal to be able to take things all the way to court.

Put simply, the DDA offers virtually no protection, whatsoever, to people with a disability.

And then we have this absurd loophole in the law where multi-billion dollar companies can claim exemption to discrimination. They can ask for exemptions to modifying buildings because they need more time to plan or get a budget together for it. They can ask for exemptions to having to provide interpreters or captioning because they are in “establishment stages.” and so on. The sky is the limit really for what they can claim exemptions for.

So as a consequence, for example, multi billion dollar media companies have a five year exemption from having to meet captioning requirements for new digital television stations. Why? I have no idea. It’s all about protecting business it seems. People with a disability, well, they have waited this long a few more years will not hurt will it? (Please note the dripping sarcasm.)

But this is Australia today. Take away the NDIS and what have we?

  1. 45% of people with a disability live at or below the poverty line.
  2. A system where access can be whatever a person deems it to be, even just providing someone to write notes for a person. And then they can claim, if they want, unjustifiable hardship cos they have no money to pay for the note takers.
  3. A system where only 53% of people with a disability are actually employed. Worse than such economic giants like Mexico or Greece.
  4. A system where an accessible tram stop can be serviced by an inaccessible tram because the Government is just very slowly replacing old trams with accessible ones.
  5. A system where only two people in a wheelchair can fly on a plane at any one time.
  6. A system where someone as famous as Kurt Fearnley actually crawled through an airline terminal rather than be humiliated by being pushed around in an ancient push chair.

And this is Australia. One of the richest countries in the world, the land of the fair go. Meanwhile politicians are getting $275 a night to stay at their wife’s house.

This is Australia’s shame. Join me in another minutes silence to mourn the continued existence of the DDA and the total lack of willingness of anyone in power to reform it.

And finally – This is what our DDA delivers ….


4 thoughts on “A Day of Mourning

  1. And to add to that if you feel you are discrimination upon by a Goods and Service that has Disability in their name or Mission Statement it is not covered by the DDA because you both have Disability!
    I wrote about this two years ago and was accused of coursing the writer to be “disgusted by me”!!!!

  2. I hope you sent it to the DDA Facebook page and everyone and anyone in Government that you can find the address of!! As I’ve said myself, the DDA is CACK! and what is the current DDA – a person with a disability – doing to change it? The previous Commissioner with a disability didn’t do much either!

  3. Yep, been there, done that. The DDA and AHRC have been screwed over by successive governments and people with disability even more so.

    When you have a disability advocacy organisation which is actively discriminating against people with complex disability and refuses to come to the table and the AHRC can’t make them attend, nor provide a reviewable decision etc, it’s completed fcuked.

  4. Can we sue the AHRC for blatantly discriminating against people with a disability? Wait! Who do we file the complaint with? AHRC is the plaitiff, so therefore the case cannot be lodged with AHRC. Hmmm,,,, the High Court? Supreme Court? Can we sue the government of the day?? Walk in and hand Mr Turnbull and Mr Shorten a writ? Or to the Governor General?

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