Finally, it has been said publicly by lawyers that Australia’s Disability Discrimination ACT (DDA) is next to useless. I have long moaned, and I know I moan a lot, that the DDA is not worth the paper it is written on, let alone the data drive that it is stored.
It seems an Alliance of Lawyers have agreed to this and are campaigning to have the law changed. A Twitter post from People with Disability revealed this:
“An alliance of lawyers and community organisations has lobbied the Attorney-General to rewrite Australia’s disability discrimination laws after a court case made discrimination claims “near on impossible to prove.”
You can see the full media release at the following link – https://pwd.org.au/media-release-disability-community-calls-for-reform-after-discrimination-claims-become-impossible-to-prove/
It has to be said that parts of the DDA are actually quite strong, in my view anyway. I am sure many will disagree. For example, Premises Standards regulate how new public buildings are designed so that they have ramps, doors are wide enough, they have accessible toilets and so on.
But even that is hard to fight if an organisation doesn’t meet the regulations. Why? Because the DDA is based on complaints and conciliation principles, but more on that later.
My biggest beef about the DDA is that it talks so much about Reasonable Adjustments. It’s a fine principle that advocates that people with a disability have the right to adjustments that can help them in a variety of situations such as work, education being involved in community activities and so on. But where it falls down is on that word “Reasonable”
This is my personal blog so sometimes I swear. If you are offended by swear words look away now or don’t read any further …. What the fuck is reasonable anyway? The idea of reasonable is totally subjective. My idea of reasonable, for example, is nothing less than 100% access, unless it is physically impossible to do that or if the system is unable to supply. (Like we have run out of Auslan interpreters because the demand is so high.) 100% should be the absolute aim.
Now if you are an organisation, even filthy rich like many private Registered Training Organisations or Universities, you might say that you cannot afford to provide 100% adjustments and even none at all. This does happen, often. So, in the case of people who are Deaf and hard of hearing an org will flatly refuse to provide access on the basis of cost or will offer something else, like a volunteer notetaker. (Yes, this still happens.)
So, Gazzataz enrols in the Masters Institute of Business (MIB) to do his MBA. The ole MIB is big, it makes hundreds of millions of dollars a year. Ole Gazza asks for 100% interpreting. MIB raise their hands up in horror – “We cannot possibly afford that! We get no Government subsidies.” They then ask if Gazza has the NDIS, so he can use his NDIS money instead to pay for the interpreting.
This is actually an adaption of a true story. So anyway Gazza has his NDIS review. He asks for interpreting so that he can partake in the course. The NDIS refuse! They say education is a State Government responsibility under the NDIA agreement with the States.
Let’s take a breather here. I am sure the reader is horrified to know that all of this is happening. But it is a fight that people with a disability have every day. There are few things that we should note in this case:
- MIB are filthy rich and should absolutely cough up. I dare say they can write off the cost at tax time and reclaim most of it anyway.
- They are within their rights to say no. They can claim Unjustifiable Hardship under the law. They can be challenged, but more on that later.
- The NDIS is also wrong. The agreement to provide access to education covers only state funded organisations. Not private, who get no Government subsidies. The NDIS will also advise Gazza to go do a State funded course. This is unfair as it limits his choice and control and may actually disadvantage him if he lives in an area where the state funded course is impossible to attend. I raise these issues because there are some smaller providers who genuinely cannot provide and the NDIS, in my view, absolutely has a role to fill this gap.
And here is the big one – If Gazza believes that MIB have broken Australia’s “Disability Law” He has to complain. (Note the quotations, yes I am mocking.)
So, Gazza complains.he The next step is conciliation which is organised by the Australian Human Rights Commission. Here is the catch, MIB can choose not to attend conciliation if they don’t want to. They can say, “Sorry, there is nothing more we can do” Or they can say, “Sorry, we offered a volunteer note taker, and we think that’s totally a Reasonable Adjustment.”
They can attend the conciliation if they choose. They can make a counter-offer, like note takers, reduced fees, extra tuition, access to lecture transcripts – Any number of things that they might consider a Reasonable Adjustment. Gazza may or may not agree. So, If:
- MIB refuse to come to the table? or
- Gaza and MIB cannot agree?
Well Gazza can choose to take MIB to court and at great expense. If we are to believe the Alliance of Lawyers quoted at the start of this article, then discrimination will be almost impossible to prove!
In the meantime, MIB have continued to make millions of dollars of profit. Gazza is stressed out and over a year later no resolution has been found and he cannot start his course. Employment opportunities have passed him by. If Gazza decided to go to court the whole saga will probably still be dragging on into 2025. Gazza will be out of pocket unless the court rules in his favour. In which case MIB probably will appeal and it goes on and on ….
This is what people with a disability in Australia must confront everyday as they try to make use of Australia’s almost worthless and useless DDA.
I for one am right behind the Alliance of Lawyers and every one of us should be. It’s something every single disability advocacy organisation should be behind and working on together … Be it AFDO, NEDA, Deafness Forum, Deaf Australia, PWD, PWDA … All of them need to get together and fight with this Alliance of Lawyers (Perhaps throw a reform suggestion about the NDIA in there too and their half-baked interpretations of their own legislation that many of them don’t even understand.)
It’s time for change. Disabled people have suffered enough!