TRANSCRIPT OF PROCEEDINGS AT SYDNEY ON WEDNESDAY, 18 FEBRUARY 2004, AT 9.15 AM Continued from 11/2/04 in Hobart MRS OWENS: Welcome to the resumption of hearings for the Productivity Commission inquiry into the Disability Discrimination Act 1992 which we will refer to as DDA. My name is Helen Owens and I'm the presiding commissioner on this inquiry. My associate commissioner is Cate McKenzie. On 5 February last year the government asked the commission to review the DDA and the Disability Discrimination Regulations 1996. The commission released a draft report in October last year.
The purpose of this hearing is to provide an opportunity for interested parties in Sydney to discuss their submissions and to put their views about the commission's draft report on the public record. Telephone hearings have been held in Melbourne and public hearings have been held in Canberra and Hobart. Hearings will also be held in Melbourne and Brisbane. When we complete the hearings in March we will redraft the report and submit it to the government by the end of April. It's then up to the government to release and respond to the report.
We like to conduct all our hearings in a reasonably informal manner but I remind participants that a full transcript is being taken. For this reason and to assist people using the hearing loop, comments cannot be taken from the floor. If anyone in the audience wants to speak, and there's no audience at the moment, I'll be allowing some time at the end of proceedings today for you to do so.
Participants are not required to take an oath but are required under the Productivity Commission Act to be truthful in their remarks. Participants are welcome to comment on the issues raised in our other submissions. The transcript will be available on the commission's web site and word format following the hearings. Now, I'd like to welcome our first participant today, the Disability Council of New South Wales, and thank you very much for making another submission and taking an interest in this inquiry. As I said to you before we commence today, I've been very impressed with the input that you've made to this inquiry and this last submission has been very very helpful to us in addressing some of our findings and recommendations directly. For the benefit of the transcript, could you each please state your name and the capacity in which you are appearing today in your capacity with the council.
MR HARRISON: I'm Joe Harrison. I'm the research officer with council.
MR SIMPSON: My name is Michael Simpson. I'm a council member.
MR REDMAYNE: My name is Glen Redmayne and I'm a council member.
MRS OWENS: Good, thank you. We have read your submission but I understand you'd like to highlight some of the main points.
MR SIMPSON: Yes, I thank you, Helen. I want to make some opening comments and in doing that I want to commend the commission on the work that has been done right through the initial round of hearings and consultation and production of the report. As you mentioned, you have seen several submissions from the council, particularly referring to our most recent January submission which really picked up on the findings of the commission in its report.
We view the report as a pretty thorough attempt to cover what we believe to be exceedingly complex issues and to cover reasoned arguments to amend, clarify and extend the DDA. As documented, the disparity of views - you've been able to document the disparity of views and draw those views together to come to some conclusion and, while we don't agree on all points put forward by the commission, we believe that it's a well‑researched and well‑documented contribution to the DDA debate.
You are aware that the Disability Council of New South Wales is an adviser to the New South Wales government and we are a body of individuals drawn from the disability community, people with direct experience of disability as well as those who represent other sectors such as families, carers and service providers, and whilst formally we have a key role in providing advice to the New South Wales state government, we also have a role in providing advice to the federal government and hence have a broader interest in policy and legislation, not only to do with New South Wales activity in government but also the federal arena. You will have noted in our submission that we agree with a number of the recommendations in the report.
We've made comment about some of the areas where the commission were looking for information and feedback from the disability community and the broader community interested in the DDA and we pick up particularly on a couple of elements that we want to have further discussion about, particularly the bits around the social model definition and the issue around consultation around the development of DDA standards. So in making those opening comments I think we're happy now to go through with you the recommendations that we've made and pick up on any particular issues that you want to ask further questions about.
MRS OWENS: Good, thank you, and thank you for your comments. I think we'd be surprised if you agreed with everything that we said, wouldn't we, Cate.
MS McKENZIE: Well, that's right.
MRS OWENS: But what we're trying to do at this stage in the process is really just bring together all the views and we have floated a few ideas. We've made a few draft recommendations and asked for more information in certain areas and we've been
getting a lot of very useful feedback. Just before we go through some of the points you've made on the findings and recommendations, you quite clearly correctly pulled us up on a bit of repetition in our report which I thought was useful and, as I think it's clear to you, it's a draft report and this is the time in the process where we try and smooth things over and make it as close to perfect as we can get it. But there was one area where I think we're still trying to check the figures.
You talked about - this was on page 4 of your submissions about the report noting - and I won't go through the whole thing about 26 per cent of complainants whose complaints were not conciliated and stated the cost was the reason - and then you said that we made the same point elsewhere. The other point had exactly the same figures which looks very suspicious but it was actually about the process being complex so it was relating to a different point and at the time we put those figures in I said that looks very strange having exactly the same figures and we did check it but we'll check that again - - -
MS McKENZIE: It still looks strange.
MRS OWENS: - - - because you've picked it up. It still looks strange.
MR SIMPSON: Yes, I think the fact that we've made reference to that and whether we've understood it correctly or not, the fact that we've actually made reference to it indicates that there is some ambiguity and unclarity about the report, so maybe even if the figures are correct that in structuring the report, if things can be even more clearly separated, then it would make the report easier to read.
MRS OWENS: We could have a footnote. We could say these figures are the same and they're just coincidental because somebody else might pick it up at some stage.
MR SIMPSON: Yes.
MRS OWENS: You're the only group that has so far.
MS McKENZIE: We're really happy that you read the report so closely.
MRS OWENS: Yes.
MS McKENZIE: It's really good.
MR HARRISON: One of our members who actually picked up this was a person with an intellectual disability and said, "I don't understand why they're the same," and that was an interesting comment that she picked it up with an intellectual
disability and she just also pointed out that it was confusing because it follows one on the other rather than being separated.
MRS OWENS: Yes, well, she was very astute.
MS McKENZIE: You can pass on our thanks to her because it's good.
MRS OWENS: Yes, okay, I think the easiest is just to go through the submission that you've made and just as we get to the relevant pages but the next issue that you raise on page 5 was about - this was in relation to our recommendation 6.2 and the Electoral Act and we've recommended that the government should amend the Electoral Act to ensure the right to vote for people with disabilities.
That's not the recommendation - and you've got a comment there about support people and some preferring to have a support person with them that they know. But we've had others that have come along and said that they'd actually prefer to have an independent support person because of the potential for the support person to influence say their voting behaviour. So there are arguments both ways on that. I don't know whether you'd like to comment on that.
MR SIMPSON: Yes, and there are a couple of elements to this and, whilst we genuinely believe that to the greatest degree people with or without disability should be provided with independent opportunity to vote without intervention or support from any other individual, and behind that comment is particularly the issue of people who are blind or visually impaired not being able to vote independently, there is the need to acknowledge that some people, either by choice or by necessity, need to have some support and that that support could either be independent or somebody that they are comfortable with and that should be a choice of that person.
It shouldn't be mandated that you cannot take somebody that is known to you or vice versa that the system does not provide enough resource to efficiently allow somebody to be at the polling booth to provide that support if a person is looking for somebody who might not be known to them or close to them. But what we were pointing out in particular was that in providing information, particularly to people who might need other processes explained to them more, was that there's a fine balance between influencing a person's thinking and providing enough information for that person to make an independent decision.
MS McKENZIE: You are right in a way. A support person might be able to - someone who knows that person might well be able to provide the information better to them in a way that they know they'll understand.
MR SIMPSON: Yes, in the blind community we are well aware that in South
Africa, for example, when there was a referendum to do with the change of power balance in South Africa, the blind community fought for an independent organisation to actually provide advice to people who are blind and visually impaired because people were fearful that their own families had very mixed feelings about the way things should be and black South Africans were afraid that there might be retribution within a family if they voted a particular way. So the same follows with the thinking of any person with a disability who might be looking for support, so that's why it needs to be a choice of that individual as to whether it's an independent support or somebody known to them.
MS McKENZIE: The problem about that, though, is of course that if the person is really being pressured, they will be pressured about their choice as well as about anything else, so that in other words, they may well be pressured to pick the non‑outsider, if I can put it that way, rather than to pick the outsider, dependant person.
MR SIMPSON: Yes.
MS McKENZIE: I mean, perhaps we should moderate our recommendation in a way so that we might be suggesting, perhaps, that the person could come with a support person, if that was their choice, but that there would also be independent assistance available there. So, in other words, you can have a bit of both. The independent person is really to look on to make sure that there's no pressure being applied.
MR SIMPSON: Yes. I think we would generally be happy with that, but not a recommendation around that at the sacrifice of pushing for independent access to the process wherever possible. What I'm trying to say is that we don't want for that to be seen as an adequate substitute to providing independent trading opportunities.
MS McKENZIE: Yes. No, clearly.
MRS OWENS: The other issue with polling places is the issue of physical access, and one of the interesting issues that has at least occupied my mind is whether it's necessary for all polling places to be accessible, or just some. I mean, some have said to us, "Well, people have got other options. They can put in a postal vote, so it's not necessary for them to get physical access to a polling place." I think it's an interesting issue, but there is the other side which is that perhaps everybody should have the same rights to be able to do just‑in‑time voting, rather than having to vote X number of days before.
MS McKENZIE: Yes. No‑one else in the community is forced to make that choice. Everyone else in the community has a choice of whether they're going to
vote on the day or vote in some other way.
MR REDMAYNE: I think it would also be fair to say that most of the polling venues are actually fairly public venues as well. They're commonly churches, schools, community halls and public facilities, so the argument of why they wouldn't need to be accessible tends to be a bit weak in my view, because you can easily see a case why they should be accessible, regardless of whether they're a polling venue, if they're chosen to be a polling venue for other reasons that are suitable to the electoral process, then in my mind even more so they should be accessible.
MR HARRISON: The other point I'd make is that quite often the actual building is accessible, but access to it - I'm thinking of one near Bellingen where the building is accessible once you get there, but the only way to get there is to get up a fairly steep hill, a one‑in‑four kind of hill, and a person in a wheelchair is not actually going to wander up there, and if they can't drive, they can't access it.
MRS OWENS: So you shouldn't use that building, basically, there must be other options.
MR HARRISON: Find another building.
MRS OWENS: We just had an interesting case earlier in this inquiry about polling places. It was in Inverell. The federal elections were held in accessible venues, and the state elections were not. It was just an interesting one, because we couldn't see why they couldn't all be held in accessible venues. If you can manage it for the federal elections, you should be able to manage it for the state elections as well, but the Electoral Commission I think was a bit tardy in changing. I don't know what the outcome was.
MR HARRISON: The Electoral Commission has come and spoken to us about the need for accessible venues, but I don't know what they've done with the advice.
MR SIMPSON: There's a joint standing committee which has been and is still looking at issues around the electoral process, and as far as I'm aware, the disability community are reasonably active in lobbying the joint standing committee, and I would encourage the commission to continue that pressure by pushing forward for this recommendation.
MRS OWENS: So that's a New South Wales committee, is it?
MR SIMPSON: No, federal.
MRS OWENS: Federal.
MR REDMAYNE: A common experience that people with disabilities also have in those environments, particularly when the venue isn't fully accessible, is that it seems to be the practice that most of the - certainly the material on voting when you approach the polling venue and the procedure upon entering the polling venue are structured according to the principal entry point, and if that isn't the accessible entry, it's common for people to find that they (1) miss out on all of that information. For some people, I guess, that's an advantage, but I guess you don't have the option of looking at material if you haven't had a chance to make some decisions prior. Also, there's a tendency to come into the venue from a different angle, and as such you become out of sync with the queue, and the directions become different: where you need to go and how you need to start processing your vote, what table you need to go to, where the information is, and I think that's something that could be easily resolved by having a policy in place that considered that, and considered all the entries leading into the polling venue, and that people should receive the same or similar levels of information and direction.
MS McKENZIE: At each entry.
MR REDMAYNE: Yes.
MS McKENZIE: It seems such a commonsense approach. It's hard to understand why people don't do it already.
MR REDMAYNE: And I guess also be ready for somebody when they do have some specific needs in relation to voting, whether it be some level of assistance or where there might be a lowered section to vote, or whatever the situation might be. I've had feedback that commonly that's an issue for people, that they spend an awful long amount of time trying to get the system right, once they've entered the polling venue itself.
MRS OWENS: That has been very useful. The next issue - Native Migration Act.
MR SIMPSON: Before we get to that one - I'm sorry about this - but I think recommendation 10.1 is before that which is around the unjustifiable hardship.
MRS OWENS: Yes.
MR SIMPSON: Can we talk about that one?
MRS OWENS: Sure.
MR SIMPSON: Because in our original submission we basically said, "Look, get
rid of the whole thing." However, your report was a little more considered and reluctant to do that, so we recognise that the commission is of a different view, and we support the widening of the coverage of unjustifiable hardship to all substantive provisions of the DDA, that make provisions that make discrimination on the grounds of disability unlawful, as a means of getting some of that consistency across the DDA, so did you want to talk a bit about that?
MS McKENZIE: We understand what you say, as far as our recommendation is concerned. I suppose we are more concerned really about those areas where clearly you felt that we ought to reconsider some of our recommendations. The way I read this submission is you think that if we take all of our recommendations on this aspect together, you're not unhappy with the recommendations we've made.
MR SIMPSON: No, we're not, but what we were trying I guess particularly to emphasise is to address what we perceive to be the imbalance, and in particular the fact that people with disability not only have to demonstrate that discrimination has occurred, but also demonstrate that the solution is actually reasonable.
MRS OWENS: That's a slightly different issue, but I think what you've balanced your change of mind on justifiable hardship on is the basis that we have said that when that is being interpreted, the community‑wide benefits and costs need to be taken into account. My interpretation of your change was that that was something that satisfied your concerns about unjustifiable hardship, if it was looked at in that broader context. Would that be a correct interpretation?
MR HARRISON: I think that - well, I'm personally still opposed to unjustifiable hardship in any form. I think that that would be a reasonable compromise. In fact, putting it back on the individual is one issue, which is a separate issue we've covered in the submission, but putting it back on the individual complainant to prove that they've not been discriminated against rather than the one that you're complaining against to move the burden of proof, but there's also I think the issue that unjustifiable hardship is often taken - if you look on a case‑by‑case basis - in a very narrow sense. That widening will probably assist in interpretation.
MRS OWENS: So there are two reasons why you can potentially find it slightly more acceptable, and one is because we have got that other recommendation, that change in the burden of proof, and that we're thinking more broadly about community‑wide benefits and costs.
MR HARRISON: Yes.
MRS OWENS: I mean, we've stuck with unjustifiable hardship because we think that the act needs to benefit the interests of everybody, and it's particularly important,
say, if you're thinking of a small business that may really have genuine problems if something has to be done, like a major adjustment which could actually tip them over the edge, or a small school or whatever it is. So you need the ability to be able to balance it in some instances, but it needs to be used very carefully.
MR SIMPSON: Yes. That's essentially where we were coming from. We just don't want it to be seen as a get‑out clause ‑ ‑ ‑
MRS OWENS: An out.
MR SIMPSON: - - - in the same way that job descriptions have at the bottom "other duties as required".
MRS OWENS: Yes.
MR SIMPSON: You know, just basically a catch‑all.
MR REDMAYNE: I guess the feeling of council would be that they support that with a level of hesitation, and you're correct in that I think with the other provisions that have been recommended in there, we're more comfortable with that. The issue, I guess, is coming from an experience or a view that in instances where unjustifiable hardship are measured - and I think Joe brought this one up - when you look back at the way cases have moved, or discussions have occurred, there tends to be a sense that the unjustifiable hardship kicks in at the point when a complaint is looked at, and the unjustifiable hardship is primarily going to be experienced by the respondent, which in some cases is true, and in some cases far more than others. The hesitation comes from trying to find an acceptable way to measure the hardship that is experienced by the person or similar people and their associates that cumulatively led to that complaint being raised in the first place, if that's clear. I think that it's difficult to measure quantitatively the hardship that people are facing in a systemic way, and when you look at the broad provisions of unjustifiable hardship and how they're assessed throughout the act, and you acknowledge that yes, you do need to look at the whole picture, and all of the stakeholders in there, in its current form, whether it's meant to or not, there's a sense that it often favours the respondent because there's a view that the status quo is okay and that previous practice has been okay, up until the point when a complaint is looked at. And I don't know that that's the reality of the situation. I think that there's a lot of frustration and angst and disadvantage that occurs before a person actually raises a complaint, and I'd suggest that that could be seen from the small number of complaints that have been submitted over the 10 years of the act's operation. Am I making that clear? Okay.
MS McKENZIE: So really there's this balancing act going on about first whether there's hardship, and second whether it's unjustifiable. There should be the capacity
to look at what are the real detriments of this particular situation to the complainant.