By Angela Liantzakis
Disability is experienced by one in five Australians. Many Australians with disabilities, as well as their families, friends and carers, are facing discrimination despite legislation to address this. The Disability Discrimination Act 1992 (Cth) (DDA), Australia’s key legislative mechanism for protecting the rights of people with disabilities, does not adequately provide for broader social change despite its aims. A human rights-based approach, targeted at turning legislative instruments into practical realities, would emphasise broader change beyond the individual complaints mechanism in the DDA. This approach has been endorsed by the Committee on the Rights of Persons with Disabilities for the post-2015 Sustainable Development Goals relating to disability. Australia should adopt a rights-based approach to disability in order to achieve the objectives of the DDA in creating a more equal society.
Australia enacted the DDA as part of its commitment to the Decade of Disabled Persons. The Act provides protection against discrimination and replaced state and territory anti-discrimination legislation which produced inconsistent definitions of disability. The definition of disability under the DDA is deliberately broad. It encompasses a wide range of conditions and provides protection for not only people with disabilities but also their families and carers. The DDA renders it unlawful to discriminate (directly or indirectly) in specific areas of activity covering nearly all aspects of community life, such as employment, education, access to public premises, accommodation, and goods and services. Furthermore, the High Court held in Purvis v New South Wales that the definition of disability in the DDA includes the behavioural manifestations of a disorder as well as the disorder itself. This broad definition aims to prevent discrimination claims from failing at the first hurdle by falling outside the scope of disability under the Act. This was a consistent problem in the United Kingdom, where the Disability Discrimination Act 1995 (UK) had a much narrower definition.
While the technical definition of disability under the DDA is based on a medical approach to disability, the Act as a whole operates under a broader social framework. The combination of medical and social approaches is based on the World Health Organisation’s International Classification of Functioning and Impairment (2001), the most widely adopted definition of disability. This definition acknowledges the disabling nature of the environment in which people with disabilities live, aiming to remove physical and attitudinal barriers that prevent equal opportunity and participation. It was anticipated that by utilising this approach the DDA would be instrumental in achieving large-scale social change, however, the progress has been much slower to eventuate.
The DDA works largely by allowing individual complaints to be made, and experience shows that discrimination provisions relying solely on complaints by individuals with disabilities would be ineffective in achieving broader social change. While the DDA also provides a range of mechanisms to promote systemic change, such as enquiries, standards, and encouraging private initiatives through voluntary action plans, the practical achievements of these mechanisms has been inconsistent as outlined in the Productivity Commission’s 2004 enquiry.
The enquiry concluded that the DDA was “reasonably effective” but that significant improvements are needed in areas such as the employment of people with disabilities. The Commission found that broad societal change was achieved in the area of public transport. A small number of initial complaints led to the negotiation of a national strategy, ensuring accessibility of all new public transport facilities and services and existing services within 20 years. However, the DDA has not had the same success in employment where the majority of complaints are received. Most employment complaints were resolved on an individual basis and did not lead to broad policy changes by employers, particularly since there is no explicit requirement in the DDA for employers to develop, implement and report on strategies. Employment rates have also not markedly improved since the enactment of the DDA.
The protection of disability rights under the DDA could be improved by adopting a human rights-based approach in order to achieve broad societal change. The Convention on the Rights of Persons with Disabilities (2008) constitutes a significant global commitment to a human rights framework for people with disabilities, and provides authority for a human rights-based approach particularly in the general principles outlined in Article 3. The CRPD Committee stated in the post-2015 development agenda that if goals are to be sustainable they must be “rooted in a human rights-based approach” embodied by the CRPD. The DDA is currently not strictly in line with the CRPD as it does not effectively provide for broad societal reform.
A human rights-based approach is fundamentally centred on the universal entitlement to rights, equality and justice. It involves turning human rights from purely legal instruments into effective policies, practices, and practical realities, and provides a theoretical framework and practical guidance to do so. It requires society, particularly governments, to actively take measures to create inclusive societies with equal opportunities and full participation for people with disabilities. This approach has the transformative potential to create broad societal change rather than responding to individual claims of discrimination as they arise. The lack of systemic change in important areas such as employment under the DDA could be addressed if a human rights-based approach is taken.
Angela Liantzakis is currently studying a Bachelor of Laws/International Relations at La Trobe University