Craig Wallace is a self-described Disability Litigation Wimp. The problem, he says, is that the major tool we have to safeguard ourselves against discrimination, the DDA, is less than useful.
As we stagger to the end of 2012 and sleigh bells tinkle in the heat haze, we are left with a few milestones to reflect on.
Firstly, the year did not end in a hellish crescendo of falling meteorites, Yellowstone super-volcanoes or streets packed with plague zombies. Touch wood.
Secondly, this may have been the year we started to get basic care and support right for the first time through the National Disability Insurance Scheme (NDIS). Touch wood big-time.
Thirdly, 2012 marks the 20th birthday of the Disability Discrimination Act (DDA), passed in 1992.
I admire the work of its powerful advocates - especially Disability Discrimination Commissioner Graeme Innes, who has used every tool at his disposal to push for change. But it's time we asked whether the framework can match an NDIS in scale and ambition to create true inclusion and access for people with disability as citizens.
In discussing the DDA, I need to disclose that I now identify as a Disability Litigation Wimp (DLW).
We like to call ourselves DLWs because everything in the disability sector can sound a bit flash when dressed up with a really dull acronym.
Here is what my 'DLW enabled life' looks like. Every day in my local community, I scrape by with a host of local shops and services that are inaccessible but extremely local and convenient. There are handy takeaways which have steps, so when I order food I have to knock on the door or ring them on my mobile. There is a general store which is better but has aisles which are narrow and items placed high, but it does dry-cleaning, postal services and is hugely convenient.
And sometimes I use a bike shop which has a step into it but where staff will come out and take my chair from the car and put a new tyre on my wheelchair if it's flat and I am stuck.
I guess I should be making DDA complaints. And thank heavens people do. We owe much to advocates like access awareness pioneer Ian J Cooper, OAM recipient for sustained service to people with a disability, Maurice Corcoran, Scarlett Finney, who fought discrimination against her by a school, and founder of Australia for All Alliance, Sheila King.
But a while ago, I made a personal decision to draw a line where the DDA seems to force ordinary people to expose ourselves to litigation in a one-sided adversarial contest with services we use every day.
The designers of the DDA appear to believe that on top of everything else, Australians with disabilities are prepared to be mired in endless litigation, lobbing lawsuits at employers, airlines, shops, restaurants, schools and civic buildings that we interact with on a regular basis.
The DDA seems to position us as outsiders who need to barge our way in, not holders of inherent rights. Isolating people with disabilities in communities is the last thing we need in an Australia where natural supports - like shops, community services and transport - are often the only fragile links sustaining people in a broken service system.
Not to mention taking on large, well-oiled corporates with walls of slick lawyers, media machines and bottomless pits of defence funds to burn. Community attitudes towards people with disabilities are already poor, yet the DDA seems to expect us to take on the role of volunteer sheriffs while dodging flak from the trolls and those unhappy with a litigious society. Take a look at these bizarre comments about the Murray's Bus Case, for example.
To me, the current process appears to stack the cards in favour of those who discriminate. There is a complaint, then a mediation process where the pressure is on for the complainant to fold lest the case go to court.
For an organisation with deep pockets, being subject to the DDA is, to paraphrase the late Fred Daley, like being savaged by a dead sheep. Defendants usually have a generous armoury of defences - notably that accommodations will result in unjustifiable hardship. This is a nebulous, moveable concept that was arguably even further weighted against complainants as a result of the Jetstar decision.
The DDA's mechanisms also appear half-hearted. The Commonwealth Disability Strategy was meant to deliver action plans across Commonwealth agencies, yet never really stepped up. Proof can be seen in steady decline of employment of people with disability in the Australian Public Service (APS).
The DDA Standards Process, created as an engine for change, has been slow and unambitious in delivering transport standards which exempt, of all things, school buses, and have timelines which step all the way out to 2032. Incorporating Access Standards into the Building Code took over a decade. The Standards seem to be in a perpetual state of review, like the old disability services system prior to the NDIS, as if we know it's broken, but don't know what to do.
However, progress is being made. Government has released a draft of the Human Rights and Anti-Discrimination Bill 2012 which proposes to consolidate the five pieces of different Commonwealth discrimination legislation, including the DDA, into a single Act.
And the draft Bill does make improvements. For one thing, it reverses the onus of proof. Once a complainant establishes evidence of a protected attribute and detrimental treatment, the onus will then shift to the respondent who must establish that their conduct was not for a discriminatory reason.
Yet, I believe these do not go far enough at all. We need a discrimination law backed by robust mechanisms with teeth like the Americans with Disabilities Act, with an implementation authority capable of enforcing regulations, standards and driving continuous industry improvement.
The mechanisms need to move from complaints handling to compliance with quality.
Over time we will need another shift from providing access due to compliance to demand. Businesses need to see people with disabilities as consumers of importance and value, especially as a peaking wave of retiring baby boomers acquire disability.
Access and inclusion are good sense and a right. Yet somehow the DDA manages to achieve neither of these mindsets. It creates a limbo which doesn't force change outright or have sufficient 'muscle' to allow people to accept access as a given and move beyond rules and compliance to good service.
Despite almost 1 in 5 Australians having a disability, it is telling that we achieved nothing like the foothold that family friendly spaces, environmentally safe products or the pink tourism dollar have gained in the corporate imagination.
The 21st century will place strains on our infrastructure and capacity for access as the population ages and the NDIS provides people with freedom to participate. Neither the DDA nor its impending cousin seems up to the job of getting Australia ready. We need to do better.
Craig Wallace is the President of People with Disability Australia and is the marketing manager for a national community organisation. Craig has a disability and uses a wheelchair for mobility.
Posted By John Bedwell Sydney Access Consultant for Obvius Access