As manager of a State Government Task Force examining Anti-Discrimination legislation to cover intellectually disabled people, Richard lists some of the issues and early findings of the 1985 SA Task Force
22 April 1985 – Address to Institute of Developmental Disabilities

The pervasiveness of structural discrimination

I wonder if we really understand that discrimination is part and parcel of our everyday living. Do we understand that when our society encourages ambition, high achievement and leadership as standards of “good”, it must also accept that many people will not meet these standards and will become losers within the system and therefore less than “good”. Third world countries, for example, are now beginning to understand that our wealth is at their expense, and that international trade operations reinforce the built in structural discrimination.

Since the United Nations announcement of an International Year of Disabled People, people with disabilities have themselves arrived at a growing awareness that they are often at the bottom of the social barrel, and that other forces benefit by keeping them there. One of the challenges of governments is to act to counterbalance some of these forces in an effort to raise the status of disabled people.

Brief history of anti-discrimination legislation in South Australia

My address will attempt to give a brief background to anti-discrimination legislation in South Australia and to present some of the difficulties facing the Task Force when making recommendations.

The first tangible concern with discrimination against persons with impairments began in 1976, towards the end of Don Dunstan’s era as Premier, when the then Attorney-General, the Hon. Peter Duncan called for the formation of a committee to, “consider the law and policy affecting persons with physical and intellectual handicaps.” This Committee was led by Mr. Justice Bright.

The first Committee relating to physical handicaps reported in December 1978 to the Honourable Trevor Griffin, Attorney-General to the Tonkin Government. The Report recommended the introduction of anti-discrimination legislation to prevent discrimination on the basis of physical impairment.

In 1981, legislation empowered the Commissioner for Equal Opportunity to investigate complaints of discrimination in areas of employment, education, access to public places and the provision of goods and services.

The Second Bright Committee produced Volume II, with a report presented in March 1981, which related to persons with intellectual disabilities. Although the second Committee came to the firm conclusion that intellectually disabled persons should be protected against discrimination, the Committee left it to Government as to how this may be achieved.

In December 1983 the present Attorney General, the Hon. Chris Sumner formed a Working Party to review South Australian Anti-Discrimination legislation. The Committee recommended the consolidation of the Sex Discrimination Act 1975, the Racial Discrimination Act 1976 and the Handicapped Persons Equal Opportunity Act 1981. This was achieved in late 1984 when Parliament assented to the Equal Opportunity Act 1984.

During its investigations, the 1983 Working Party took evidence, particularly from Dr. Guy Hamilton, who argued against including intellectual impairment in this Act as it was mostly planned for physical impairment. Dr Hamilton saw particular problems with how decisions could be made about the fine line between intellectual impairment and loss of capacity. This process had the potential of creating another level of discrimination.

Following the report of this Working Party on Anti-Discrimination legislation and in response to growing community concern at the limited coverage of intellectual disability, Cabinet on the 12 November 1984, approved the Attorney-General forming a Task Force.

1984 Task Force to investigate coverage for intellectually disabled people in anti-discrimination South Australian laws

As administrator of this Task Force, my role is to investigate and make recommendations to the Minister of Health by May 1985 on whether intellectually disabled people should be protected by inclusion in Equal Opportunity Legislation or by other means.

Membership of the Task Force was announced in January 1985 and its first meeting was held on the 1st of February. Given the financial staff and time restrictions, the Committee has limited its investigations to a brief overview of current Australian anti-discrimination legislation and to public submissions. Besides Press advertisements, over 400 South Australian organisations and individuals have been invited by letter to make submissions.

By the submission deadline date of 29th March, 16 written submissions had been received.

The Task Force is currently preparing a discussion document which will include views expressed in these submissions for community circulation and comment before making its final report to the Minister of Health by the now extended time of July 1985.

Thorny issues around intellectual disability and protections under the law

A recurring issue in the whole area of anti-discrimination is the power and limits of law itself. Depending on the perspective of its potency, wide variations occur in people’s expectations of what legislation can do.

Broadly speaking, two opposing views were previously expressed to the Attorney-General. Some people saw the exclusion of intellectual impairment from the Equal Opportunity Act as discrimination.

Other people hold that it is pointless to merely include a group if that legislation is unable to provide the required protection. The latter group would agree with Wolfensberger, when he pointed out in his book “Limitations of the Law in Human Services” that the most important limitation of the law is that no law can deal with what society has not got to give.

The law, he argues, finds it difficult to impose a morality or discipline which is not commonly held by its society. It is also difficult for the law to achieve integration in a society willing to kill, in order to be separate and independent. Wolfensberger maintains the law usually follows public morality – it sometimes precedes it, but rarely by much.

Limits of the law

The Task Force has also noted another general comment by Black in his book “The Behaviour of Law” (1976) which raises the following issues:

  • The directionality of law points out that its evolution is downward and outward.
  • The law invariably supports the wealthy instead of the poor, the educated instead of the illiterate, the corporate instead of the individual.
  • Less organised people are much more vulnerable to penal law whereas organised people are orientated more to compensatory law.

In considering anti-discrimination legislation, there is the assumption that some people need ‘protecting’ from those who would ‘abuse’ their situation. It is a complex area in practice, with problems of definition, proof, and blind spots we may hold because of our own values.

How many of us, for instance, consider the protection that employers need from disabled people? I feel that we need to debate fully our intentions and expectations while framing new systems. In our community there does appear to be a reasonably positive universal view towards the educative value of anti-discrimination legislation.

In this regard the Equal Opportunity Act 1984 already states;

13 (1) “The Commissioner shall foster and encourage amongst members of the public informed and unprejudiced attitudes to persons who have intellectual impairments.

13 (2) The Commissioner may institute, promote or assist in research, the collection of data and the dissemination of information relating to persons who as a result of intellectual impairment, face significant problems in participating in the life of the community and to the ways in which those problems may be resolved.”

There is however some debate over the breadth of interpretation these two provisions actually allow. Many feel there is considerable potential for greater intervention by the Commissioner of Equal Opportunity within the intellectual impairment area.

How people with physical impairments are faring under current laws

Before considering the addition of intellectual impairment to the S.A. Equal Opportunity Act, some account should be first taken of the law’s success in dealing with physical impairment.

The records of the S.A. Commissioner for Equal Opportunity show 64 complaints made by people with physical impairments between January 1984 and January 1985.

  • 18 Resolved in course of conciliation
  • 16 Declined and/or outside of jurisdiction
  • 12 Lapsed
  • 5 Referred elsewhere
  • 13 Not as yet resolved

There were 64 complaints made by people with physical impairments in total in the past calendar year, January 1984 to January 1985

Analysis of these statistics are interesting but demonstrate a fairly negative outcome.

  1. The statistics confirm the value of conciliation.
  2. Demonstrate a low usage of the Equal Opportunity Office by people with disability.
  3. Illustrate a misunderstanding of the office’s jurisdiction or actual power.
  4. Show an apparent slow decision/outcomes process.

Limits in lodging claims under anti-discrimination laws

It would appear that in its current form the law can only pick up a few specific instances of discrimination against people with physical impairments. For instance, for many disabled persons the exemptions undercut the most common basis of discrimination, such as the access exemptions. It is an easy matter for an educational body, for example, to legitimately deny education on the grounds of existing inaccessibility.

The adversarial nature of our common law requires an aggressive and strong action to bring a complaint forward. These complaints must also be in writing which is apparently a deterrent to physically disabled persons and a difficult form for many persons with intellectual disabilities.

Again, the adversarial nature of our common law also requires a strong case with considerable evidence to prove discrimination. The evidence is not always easily gathered or understood in an area which is full of myths, charity and seeming benevolence.

Practitioners highlight problems

Many who have worked with the current S.A. legislation feel that the Act neither come to terms with the actual structure of discrimination faced by people with disabilities, nor are its systems of operation tailored to their needs.

The Act does allow for the Commissioner to assist in the presentation to the Tribunal of referred cases, however, if the Commissioner declines to accept cases, which could be on a number of different grounds, the disabled person is on their own, possibly facing a leading Q.C.

Perhaps the greatest hidden problem for people with disabilities and current legislation is the conflict of statistics, regulations and by-laws at various levels of government and administrative authority. In these cases, disabled people need the strength and organisation of viable consumer movements, both to look after an individual’s rights and to argue for rationalisation of anomalies.

The Equal Opportunity Act for example, makes discrimination in the provision of accommodation unlawful. On the other hand Local Government by-laws require Council approval before multiple dwelling use is allowed. This by-law has been effectively used to frustrate many attempts to establish group housing.

Disappointing interstate experience

The Task Force has also been interested in interstate experience with and evaluation of anti-discrimination legislation. N.S.W. has fairly long experience in this area, with its Anti-Discrimination Board which administers the N.S.W. Anti-Discrimination Act, 1977. This Act covers both physical impairment and mental disability.

The President of the N.S.W. Anti-Discrimination Board, Mrs. Carmel Niland, who has been involved with that legislation from the pre-drafting stage, now feels the legislation as it is, is counterproductive to its aims.

Assumptions and anti-discrimination laws

One final difficulty in designing anti-discrimination coverage for people with intellectual disabilities was best expressed in one of our submissions:

“Intellectually disabled persons have a unique problem in their inability to be able to absorb information and therefore use it to their advantage. Legislation designed to protect the interests of a particular group assumes the group can understand and utilise that legislation.”

I hope I have been able to give some pertinent information tonight and perhaps raise the level of debate over this important issue.