“ARE OUR DISABILITY DISCRIMINATION LAWS OUT OF DATE?”

“If you don't have a lens that's been trained to look at how various forms of discrimination come together, you're unlikely to develop a set of policies that will be as inclusive as they need to be. ”

Kimberle Williams Crenshaw

On 1 March 1993, Australians with a disability had a national law that was designed to provide them with equality in many areas of life. Over the past quarter of a century, the DDA has contributed significant?ly to social change for people with disability and has been used by thousands of them to fight against discriminatory practices in many fields, including employment, education, access to transport, goods, services, facilities and more.

The commencement of the DDA was never going to be a panacea for all the issues and disadvantage faced by people with disability in Australia, however it did clarify and amalgamate the various disability discrimination laws existing at the state/territory level. It represented a clear, national approach.

The fundamental principles of the DDA are to ‘eliminate, as far as possible, discrimination against persons on the ground of disability’ (DDA, s 3(a)), and ‘ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community’ (DDA, s 3(b)).

The DDA was Australia’s first federal, uniform legislation to recognise the rights of people with disability, symbolising a major national step towards ensuring that people with disability have the same rights as other citizens.

The DDA simultaneously established an avenue of redress for people who believed they have been treated less favourably because of their disability, effectively creating a frame?work to work towards eliminating, as far as possible, discrimination on the ground of disability.

But it is not working as well as it should.

‘A recent legal case has undermined the way the DDA works to require employers and service providers to make reasonable adjustments. This has far-reaching and previously unexpected implications for four million Australians with disability and requires an urgent response from the Government.

‘In the case of Sklavos v Australian College of Dermatologists, the Federal Court has found that not only must a person with disability show that they are disadvantaged by a failure to provide a reasonable adjustment, but that the failure to provide the adjustment was caused by the person’s disability.’

‘People with disability fought hard to have an obligation to make reasonable adjustments included in the DDA. The obligation was introduced after a recommendation of the Productivity Commission which recognised the importance of reasonable adjustments for the inclusion and participation of people with disability.

The Federal Court decision makes these provisions almost useless, and leaves people with disability without the protection against discrimination that they need,’

In Australia, there is a general lack of ‘rights consciousness’ as it relates to the DDA, particularly when compared to other liberal democracies like America. We still face a collective lack of forethought and responsibility regarding accessibility under the DDA, and this can lead to alarming situations, particularly when it comes to the safety of people with disability.

For example, when we experience natural disasters the last thought is about the importance of public building accessibility for people with disability or how they are evacuated from areas that have been declared disaster zones.

The disability rights space could benefit from further legislative review in this area to consider enacting laws that move beyond the current scope of an anti-discrimination model, to also protect people with disability against violence and abuse.

International human rights instruments also have a role to play. Foremost of these is the CRPD, which represents a significant paradigm shift in the way people with disability are perceived by society.

It is a move away from the medical model, which sees a person with disability in need of being fixed or cured, and towards the social model, which is based on the theory that disability is the result of the interaction between people with impairments and an environment that has physical, attitudinal, communication and social barriers.

With Australia being a signatory to the CRPD, this represents a unique opportunity to enshrine this UN instrument into domestic legislation and create a truly inclusive Australian society that does not see people with disability as needing to be fixed or cured.

After 25 years, it is important that we acknowledge all that the DDA represents for Australians with disability. Equally as important, we need to explore where Australia should ideally be in another 25 years. When we reach that time, I hope to be in a position to reflect on the ongoing positive systemic outcomes that have been achieved through the Commission’s conciliation process or the court process.

The commencement of the DDA was the genesis of change 25 years ago, and whilst our lives have drastically improved, it is imperative we keep the conversation alive to ensure that all people with disability are living in a truly inclusive Australian society.