"Accountability breeds response-ability." – Stephen R. Covey
That’s Fair
Carl Williams was bashed to death in gaol recently. This alleged cold blooded mass murderer met the fate that he is accused of dishing out to so many. Of course his life is glorified in Australia. He is the subject of countless newspaper articles, books and even a TV series called Underbelly. Just before his death newspapers alleged that his daughter’s private school fees were being covered by tax-payers as part of his plea bargain. Apparently by cooperating with the police, a few financial incentives were negotiated. He allegedly asked for them to clear his fathers tax debt too, but was refused. His trial cost the Victorian tax-payer millions upon millions of dollars. And now he is dead – Money well spent??
Last year in Brisbane, a man accused of killing three people complained because legal aide wanted to change his lawyers. He was yet to be proven guilty and the Government had seen fit to fund his legal representation. This is a good thing because he may well be not guilty and has the right for fair representation. The accused wanted the same lawyers that commenced his defense on the case because they were familiar with everything that had occurred during his trial. Fair enough. The accused has legal fees that are expected to cost the tax payer in the vincity of $2 million. This is not including other court costs and the costs of the prosecution lawyer. Guilty or not guilty the tax-payer is forking out. Everyone has the right for fair representation don’t they? That’s justice – Right?
Somewhere today, in Australia, a person with a disability has been discriminated against. They can’t get access to a building, education or every day things that the general populace take for granted like the movies. Many of them get to a point where they have to try and use the Disability Discrimination Act to protest against their discrimination. Discrimination is against the law – Right? It’s a bad thing. Murderers are brought to trial and sent to gaol if they are found guilty. They know that killing is wrong and so they must cop the consequences. It’s the same for breaking discrimination laws – Right? Its wrong with consequences – Right?
Not quite. You see, disability discrimination is essentially only against the law if the person with a disability complains about it. Discrimination can occur legally in Australia until someone sees fit to complain. Individuals must complain to the Australian Human Rights Commission who will then try to resolve the issue. If someone is found dead – the police kick into action. A thorough investigation happens. No stone is left unturned to find the cause of death. If foul play is suspected the police do all they can to find the murderer and bring that person to trial. What of discrimination?
Like murder, disability discrimination is against the law. Everyone knows it is happening. But who investigates it. If blatant discrimination occurs like what has happened with the Cinema Industry in regard to cinema access who holds the Cinema Industry to account? Does someone investigate it and say, “That’s wrong, We are asking you to stand trial and prove your innocence.” Do police go in and issue a warrant to investigate alleged discrimination? Do they force the Cinemas to comply with the law? The answer to these questions is – NO! First someone must complain the Australian Human Rights Commission mediate. And then what?
Well the Australian Human Rights Commission tries to get the person making the complaint and the organisation that is alleged to have committed the discrimination to agree on a fair outcome. If the two parties cannot agree on an outcome then the Australian Human Rights Commission basically says, “Sorry – cant help you – if you want to resolve this you now have to go to court.”
This I know because I recently made a complaint to the AHRC about Austar pay TV for poor and inconsistent provision of captioning. The process, over six months, was this – I complained and the AHRC clarified my complaint to make sure they had understood it – AHRC then took my complaint to Austar who then were asked to respond – Austar responded that they were “hurt” that I had made a complaint cos they are doing all they can to provide captioning, that captioning is expensive and that it hurts their hip-pocket (you are allowed a mocking giggle here) – AHRC contacted me and asked if I accepted Austars response and asked if I would withdraw my complaint – I responded no – AHRC responded that there was no hope of resolving the complaint and that I had to go to court if I wanted justice.
OK! Court it is. Like the accused murderer I would hope that there would be something that could help me pay my legal fees and have the matter dealt with in court with the full force of the law – not so! I have to pay! Little old me has to somehow compete with mega-rich Austar in the courts. Austar will be happy and able to fork out millions on a lawyer but less happy and apparently unable to forkout similar capital on captioning – go figure. I have to put my house on the line if I am to have any hope of having Austar held accountable. I can ask the courts to consider my financial situation. The courts may agree to cap court costs. The courts recently did this for a discrimination case. They capped costs to $25 000. Cheap! Mere pocket money for the average person – RIGHT?
So what am I to do? Risk my livlihood and house so that I can watch pay TV with captions? Or simply say stuff it – its not worth it? What happens if the courts find Austar not guilty? – OOOPS, gotta sell my house cos I wanted to watch a bit more TV with captioning. Sorry kids, pack up, we are off to the Salvos. I hear the food is not bad, certainly better than my cooking. It’s all worth it – the law will protect me – RIGHT?
This is what people with a disability are confronted with in Australia. A law that will only protect them if they can pay. If they can’t – well bugger that we will just have to let the discrimination keep happening. Do you remember Gail Smith? The mother of a Deaf daughter who took the Queensland Education Department to court for not providing Auslan for her daughter. She at first lost, appealed and then won. This led to the Queensland Education Department forking out $30 million to introduce Auslan to schools. It took god knows how many years to get to that point. I asked her recently how much it cost her financially – she said she did not know and that I would have to ask her lawyer – “Roughly”, I asked “How much do you think it was?” – “I don’t know…”, she said, “A lot.” Thats not including the emotional cost as well. The law protects us – RIGHT?
Well it does, if we can afford to pay for it. If we want to put everything we own on the line in the hope that the courts will agree with us then, yep, it’s a great law. Frigging fantastic law! What’s that I hear you say? SARCASTIC – me? Meanwhile murder trials are costing us millions of dollars. A dead mass murderer is having his child’s private school fees paid for at our expense for agreeing to cooperate with the police. Hell, they even considered wiping his fathers tax debt. Me – I just want to watch more TV and understand it – whose gonna help me? No one! No worries! I will just put my house on the line.
That’s fair – RIGHT??
I enjoy reading the Rebuttal and there has been a few that strikes a chord with me but nevermore so than this article.
I have been through the DDA process at least twice and can vouch that I have walked away disillusion with the whole process and wondered whether it is really worth my while.
Prior to the recent changes, the DDA complaint process requires the person to make the complaint to justify why the company/organisation has failed in their duty to provide reasonable adjustment and/or they cannot cite financial hardship. The amount work, stress and not to mention anxiety involved was enormous. Then by the time you get to the mediation session the opposition will sit through and say “nope we will not agree and rather go to court”. Unless you have a very generous lawyer or someone who will provide pro bono, or you have received a very generous inheritance or your family is very wealthy, your chances are quite slim if you don’t have the cash to take it further.
I am aware court cost can vary between $3,000 to as much as $15,000 a day. This does not include cost of the other party if you lose.
Now the DDA has recently been modified whereby it is now up to the organisation/company that is being complained against to justify its actions as per what this article has outlined above.
But this article failed to also mention is that many organisation/companies usually have high level of insurance cover that can cover them for ‘legal cost’ arising from being ‘sued’. So in theory, if we sue them, they can simply go and take the court option, appoint the best QCs in Australia and know that if they fail majority of their cost will be covered by insurance.
But poor us, there is no ‘insurance cover’ that I am aware of that protect us if we want to sue someone over discrimination!
It is simply laughable that a law that is suppose to protect people with disabilities are literally in the opposition favour because they have the comfort of a ‘safety net’ to – dare I say it – deliberately push the innocent one through the mud and make them vulnerable by striking the very fear they have – financial impact.
The DDA is not like the American Disability Act where it is a proactive legislation. The DDA is a ‘reactive’ one and a poor one of that.
If the DDA was proactive, we would not be seeing ridiculous number of submissions seeking exemptions, high number of formal complaints and mediation dropping out to so far as not ever reaching court level.
It is laughable that this article compares to the criminal law let alone terrorism law where the consequences are clearly spelled out. Discrimination is a serious breach of Human Rights and that in itself makes up part of the many laws that are in place internationally.
The fact examples such as Gail Smith, Scott versus Telstra cases that was dragged on over something that is purely common sense should indicate that there is something seriously wrong with this process and I am baffled why the Australian Human Rights Commissioner thinks this is still a good system. Surely they must know that the legal people will defer/avoid the mediation process at all cost and choose the court option based on past precedence. The real winners in this case are the lawyers who are milking everyone dry (not to mention the insurance companies too).
Lets not also forget the considerable emotional, financial and so far as relationship stress that this imposes on the ‘victim’ and how they (win or lose) will often carry the after effects for many years to come.
The AHRC has a lot to answer but I think the Australian Government has even more to answer for in allowing such pathetic, weak and sickening legislation to be even allowed knowing true well how weak and unbalanced it is.
It is funny how the AHRC desires for people to make complaints but wonders why few and far between ever reach court. Is this effective use of tax payers funding for a Commission that has a system that is deemed unfair, imbalanced and favours the rich?
I desire to see a national inquiry on how the AHRC operates, the legislation and whether there is a fair better, proactive system that protects and empowers people with disability without such crap that us people have to go through.
I say to this author, I understand what you are going through. I urge you to keep up the fight if you can financially do it. Don’t let these corporate suckers with a mind of a pea to get the better of you.
To the AHRC and more importantly the Federal Attorney General Department, take note. Australia signed up to the Convention of the Rights of People with Disabilities and need to seriously look at why our existing legislation does not comply with international rights urgently!
Others, please share your experience here because it is high time we vent our unhappiness of what we have to work with and to continually feel let down.
Jesse (Victoria – Deaf)
Jesse,
I cannot agree more with you that a full enquiry of the AHRC and its associated legislation and processes is urgently needed – there simply must be a better way.
Apologies if I am viewing this issue too simply, but it would it not be far more effective to implement changes to the mediation system whereby if mediation is unsuccessful then the AHRC takes on the case and prosecutes the defendant on behalf of the complainant?
Or at the very least, if the AHRC perceives that the complaint is worthy of further legal action, could they then provide the complainant with a means-tested funding/grant allocation to contest the complaint further in court, as per the current Legal Aid system?
As the current system stands, it’s a mockery of the human rights process and an individual’s right to access and justice; the law truly is an “ass”!!!
It, the DDA, certainly is an ass … I am not sure what they were thinking when they wrote it. The worst of it isn’t just the complaints and pay method, it is the reasonable adjustments and unjustifiable hardship clauses.
What I would like to see is a series of must do’s .. eg you must provide interpreters, you must provide large print, you must provide visual displays in conjunction with spoken announcements, you must provide full access for fee paying customers and so on.
Certainly there will be some small businesses that will struggle with this but why not have a scale of offense…
For example you could say for business that has less than 50 people and under 100k turnover fine for non compliance $1000
For business over 100 employees and $1, 000, 000 turnover fine for non compliance $50 000 and so on.
You could then say six months to fix up situation if not done follow up fines etc etc.
There has to be a way to make this a law where people must comply without waiting for people with a disability to complain.
AHRC could have a black list on their website for serial offenders so that people know who is not providing and so on. You could have a body similar to Work Safety that does spot checks on business to make sure they’re complying with the law. If they are not they are given a set time to fix things or face fines.
Make it a law that prescribes the consequences and what exactly discrimination is. There has to be a better way than this ass of a law.
Well said Paul!
This is very similar to the system that exists in regard to OHS&W legislation in South Australia, with Safework SA employing similar legal means as those detailed above.
Some good food for thoughts there Paul.
Whilst when you go to court and win there is this assumption that there will be certain level of compensation relating to ‘pain and suffering’ and the likes but in reality it isnt. This is another reason why I think companies can push this to the limit knowning true well there is little impact on them.
As we commit any crime, it comes with consequences. As such fine, public humiliation, restriction of trade to as much as conviction against you through to jail.
The current system we have does not issue strong consequences and like what Adam said, Workplace Health and Safety Laws indicates very severe fines not just to the person but also to the company. Their profile and reputation will be severe as well. I think we need to see similar in this case.
Otherwise small petty fines will be like us getting a $58 parking fine and wont change attitudes. Hefty fines followed by failure to adhere requirements by certain timeframe will incur additional penalties and this will go against their name/record and any CEO/Director of the company too! Imagine if they knew that they will be ensuring DDA issues will be amongst OHS, Environment, IR and other legislative matters on the Board agenda at EVERY meeting. Keeps everyone on their toes.
So by merely saying – we have a disability action is not enough. By merely saying we have undertaken a disability audit and identified areas of improvement (and we will only focus on the cheap stuff) is not enough. By merely saying that we will address these issues when we have the capabilities and necessities to do so – is not enough. Strict monitoring and adherence including random onsite inspections should occur with an issue of ‘defect notice’ imposed with a timeline to fix it by a certain period or face the consequences will get them jumping.
Fair you say? For small business? well maybe that could be a very small exception BUT with a specific timeline to address it. There are schemes already in place that can address these issues and also any capital adjustment can be claimed on tax.
No more excuses – just more access!
well i like this one .. A DDA police keeping everyone on their toes .. Its what we need .. watch them all hop into line … No more excuses .. NIKE!