This is a piece I wrote in May 2014. It didn’t get published then – I’m digging it up and publishing it now prompted by the untimely passing of the excellent Stella Young, and her comments on the limitations of complaint based discrimination laws without further regulation.
On Radio National’s The Drum recently, Adam Creighton (supposed economics commentator with News Limited) questioned the cost/benefit justification for having a federal Disability Discrimination Commissioner. Let me try to save him some of the (minimal) information search costs which would be involved in doing some basic research and finding out for himself.
As long ago as 2004 Australia’s Disability Discrimination Act (“DDA”) was assessed by the Productivity Commission as being justified on purely monetary cost/benefit grounds.
More recently the Productivity Commission correctly emphasised, in its report supporting a National Disability Insurance Scheme (NDIS), that the isolation and social exclusion experienced by all too many people with disability are, in themselves, economic costs.
This is even before we take into account the massive costs of lost productivity for these people and their families which result from inaccessible environments and missing supports, as well as from more immediate forms of discrimination.
Discrimination laws such as the DDA are essential in promoting economic and social inclusion and participation. But, left unassisted, they carry significant uncertainty.
The DDA, like pre-existing laws in most States, basically told people with responsibilities in a range of areas, “don’t discriminate unless it is too hard to avoid doing so”. And it told people with disabilities they had rights to complain, and rights to remedies if discrimination did happen.
But the standard model of discrimination law didn’t tell any of these people what avoiding discrimination would look like, or where the line for “too hard” would be.
This was clearly a fairly uncertain position for everyone to be in – whether in putting up a building and then finding out it has to be rebuilt, or having to wait until the building is in place to find out you can’t get into it to work or shop.
It is well known in economics – and in daily life – that uncertainty can produce significant costs. Measures to reduce uncertainty can reduce these costs.
It is fashionable in some circles to regard all regulation, indeed all government activity, as a drag on productivity.
But appropriate regulation (including co-regulatory measures developed with industry bodies) can benefit, and in some cases be essential for, economic activity.
To take a basic example, we can all drive much faster than would otherwise be possible, because there is a rule about what side of the road to drive on. Rules, in fact, provide the difference between a market and a riot.
A large part of the work of the two Disability Discrimination Commissioners we have had – Elizabeth Hastings and Graeme Innes – as well as Acting Commissioners Susan Halliday, Chris Sidoti and Sev Ozdowski, and staff working with them, has been in promoting and helping develop measures to provide greater inclusion and greater certainty together.
Lengthy and detailed work has produced regulation, in the form of Disability Standards, for buildings, education and transport. Each of these standards was subject to a level of cost benefit analysis as part of the Regulation Impact Statement process. Each of them was developed with extensive participation, and indeed often with leadership, from industry bodies. In each of them, the disability rights policy expertise and capacity of the Human Rights Commission, led by the Disability Discrimination Commissioner, was crucial.
As is recognised by the legislation, these standards need continuing review and development in the light of experience and as additional issues emerge. But anyone using the increasingly accessible bus fleets of our major cities, for example, can see the results for themselves.
In some other areas, the Disability Discrimination Commissioner and staff have worked to apply a co-regulatory approach, where industry agrees to implement increased access over time in return for temporary exemptions under discrimination law. Increased captioning on broadcast and now subscription television over recent years are the outstanding example so far of the success of this approach. All done without wasting time and money in the courts.
In other areas again, the Commissioner and staff have been involved in more industry based initiatives such as that to develop standards for lifetime adaptable housing so that people when they acquire a disability through ageing or other causes are not forced to leave their home and seek aged care purely through lack of appropriate housing design. Minimal costs, huge benefits.
This is all work that has been done on a shoestring. Very much more could be done through funding a larger but still modest program for pursuing the twin goals of inclusion for people with disability, and information and certainty about what that means.
This is the sort of program which an adequately resourced National Disability Insurance Agency would be expected to find it worthwhile to auspice and support. At the least, there is a compelling case on pure cost/benefit grounds for continued funding of the Disability Discrimination Commissioner’s position and associated staffing.
David Mason PSM was a policy officer with the Australian Human Rights Commission from 1988 to 2014. With Graeme Innes AM and other colleagues, he was involved in the development of the Disability Discrimination Act; Disability Standards for Accessible Public Transport, Access to Premises, and Education; and in development of co-operative strategies with industry for increased access in other areas including television captioning. He was also involved in developing provisions for improved mechanisms for compliance with discrimination law, which would have been introduced with the Human Rights Legislation Amendment Bill 2012.