It's time to strengthen our disability discrimination laws

With only 53 per cent of people with a disability employed and only half likely to finish year 12, it's time to take stock of our disability discrimination laws.

Only 53 per cent of people with a disability are employed. Source: Digital Vision / Getty Images

OPINION

On a sunny day nearly 50 years ago, disability rights protesters disrupted the opening of a new but inaccessible railway station at Bondi Junction.

They were reportedly spat at and told to “go back to your nursing homes”.

Standing in front of signs that read “don’t cripple the disabled” and “transport for all”, the late Premier Neville Wran was rattled, declaring the station merely “open to many”.

Similar protests were happening around Australia, signalling a shift in thinking about disability.

Instead of seeing disability as something to be fixed, we began addressing the barriers put up by society that led to disadvantage, such as lack of access to buildings, inaccessible transport, or a lack of captions in a cinema.

This led to the Keating government creating the Disability Discrimination Act (DDA).

We mark 25 years of the DDA this month

Over a quarter of a century, these laws have allowed people with disabilities to call out entrenched discrimination in the community.

If a person with a disability has a job, they are likely to earn less.

Of the federal discrimination laws relating to age, sex and race, the DDA prompts nearly 40 per cent of complaints to the Australian Human Rights Commission.

There have been some terrific outcomes.

Like 5-year-old Scarlet Finney, who was rejected from the school of her choice because of her disability. The school’s decision was ruled discriminatory, which set the standard for what a school needs to provide for students with disabilities.

Or Bruce Maguire, who needed braille to access ticketing for the Sydney Olympics. His successful complaint was a precedent for all public events.

Or the cases that former Disability Discrimination Commissioner Graeme Innes took up himself, including dozens to make train stations announcements accessible for all.

On top of individual cases, it has helped create an awareness among the broader public about their responsibilities.

Yet the discrimination and disadvantage continues.

With an unemployment rate double the wider population and a low workforce participation rate, only 53 per cent of Australians with disabilities are employed, putting us at number 21 of the 29 OECD countries.

If a person with a disability has a job, they are likely to earn less.

One reason for this is that people with disabilities are half as likely to finish Year 12. Half of Australia’s prison population has a disability, and those in prison are more likely to suffer physical or sexual abuse.

As Four Corners revealed last year, people with disabilities are subject to unacceptable abuse and violence in accomodation.

At federal Parliament, the very place the DDA was created, new Senator Jordon Steele-John scraped his knuckles on the thin doorways and a ramp had to be installed in the Senate chamber. Did we never envision someone in a wheelchair becoming a federal representative?

25 years on, we should take stock of how to strengthen the DDA.

Victoria Legal Aid, where I have worked, submitted to the Australian Law Reform Commission that “a significant weakness of Australian anti-discrimination law is its reliance on individuals to hold discriminators to account”.

A person must know there are protections to make a complaint. After that, they have to go through a process that takes months or even years.

If they are successful, there is a poor cost-benefit ratio, particularly when fee-charging lawyers become involved. As a result, the lawyers who end up representing complainants are often from free, resource-restrained legal services like legal aid or community legal centres.

We have seen the consequences of the law’s weaknesses in the lead up to this month’s Gold Coast Commonwealth Games. In its haste to prepare, the Queensland government cut costs on its new fleet of trains. The trains are not accessible and will leave many unable to work, volunteer or even attend.

One worthwhile reform would be to give the Australian Human Rights Commission powers, not just to handle complaints, but to enforce compliance. This would be in much the same way the Fair Work Ombudsman can investigate breaches of the Fair Work Act with ‘own motion’ investigations, and enforce compliance through enforcement notices and prosecutions.

We have seen the consequences of the law’s weaknesses in the lead up to this month’s Gold Coast Commonwealth Games. In its haste to prepare, the Queensland government cut costs on its new fleet of trains. The trains are not accessible and will leave many unable to work, volunteer or even attend.

While the Australian Human Rights Commission rejected the government’s desperate bid to gain an exemption from the DDA, Queensland transport minister Mark Bailey confirmed the trains would run despite breaching the DDA. The Minister said “the decision is not about whether the trains can run, this is about whether people can lodge a complaint or not”.

One can only hope that individuals will follow up with a flurry of complaints. By then, the Games will be a distant memory.

So while the DDA will allow people to continue their own legal journeys of activism, now is the time to make the next step and strengthen what we have.

In the next quarter of a century, we can turn a society that is open to many towards one that truly is open to all.

Sam Drummond is a lawyer and disability advocate.