Dr Ben Gauntlett commenced as Disability Discrimination Commissioner in May 2019. A barrister prior to commencing his term, Ben holds undergraduate degrees in Law (Hons) and Commerce from the University of Western Australia, and was awarded the Rhodes Scholarship for Western Australia in 2003. He also holds a Master of Laws from New York University and a D.Phil. in Law from the University of Oxford, where he studied as a Rhodes Scholar.
LexisNexis congratulates Dr Gauntlett on his appointment and his vital work in protecting and promoting rights for people with disabilities. We took the opportunity to ask him a few questions about the state of Australian disability law and how we can all work toward positive change in this field.
What is the most significant case to date in Australian disability law?
I do not like to regard one case as more significant than another as for the people who have a disability the result of every case matters. Litigation is time-consuming and expensive and cases are often the result of significant events that cause tremendous angst for the individuals involved. However, the recent decision in Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 has caused some unease in relation to when an employer or education provider is under an obligation to provide reasonable adjustments. The issues raised by Sklavos are probably better dealt with by reforming or amending the Disability Discrimination Act 1992 (Cth).
What piece, or set, of disability law reform would you most like to see in Australia or worldwide?
In Australia, at a Commonwealth level, the Disability Discrimination Act needs to be reviewed in the context of the broader National Disability Strategy and National Disability Agreement. The Disability Discrimination Act is also part of a wider collection of Acts and legislative instruments, which deal with issues such as access to transport or buildings. The reason for review is we need Acts that reflect a modern concept of “disability”, which understands a person’s difficulties may be caused by the environment around them and not any type of medical impairment. Furthermore, many disabilities are not visible. Universal design principles should be adopted at all times and reinforced through regulation. These principles should extend to the “built” and “electronic” environment.
How can the legal profession play a role in ensuring disability discrimination is ended?
I am a strong believer the legal profession should lead by example. This is particularly the case where potentially negative perceptions exist in society that people will not speak out against. Such perceptions exist for people with disabilities in Australia.
The Organisation for Economic Co-operation and Development (OECD) noted in 2011 that Australia ranked 21st out of 29 countries for employment of people with disabilities. A significant aspect of this low ranking within the OECD is the perception of people with disabilities in Australia. Perception of people with disabilities in Australia will only be altered by dealing with the issue at an individual, organisational (e.g. law firm or professional body) and structural level (e.g. legislation). The legal profession needs to assess to the extent it engages with people with disabilities and, if not, why not. The legal profession should target the employment, engagement and inclusion of people with disabilities as part of its diversity strategy.
Any revised approach to diversity needs to involve explicit data collection and training.
What are the most effective actions for positive change that may be made by individuals?
When considering the concept of “diversity” it is important to realise it has a number of elements. For example gender, race, ethnicity, sexual orientation and disability are some aspects of diversity. But disability is a diversity characteristic that some people seek to hide. Part of the reason for this is that people with disabilities may believe they receive no benefit in revealing their disability. When considering the issue of “diversity” in the profession, disability should be explicitly considered. Diversity policies should not be economically driven. Rather, such policies should seek to acknowledge the inherent characteristics of each individual and the challenges that may be faced. In particular, intersectionality (and the difficulties it poses) should be expressly noted.
Diversity extends to how firms or organisations represent themselves in the media. People with disabilities should be recognised and acknowledged in any publication.
For more information on the cases mentioned above, please visit our website.