November 2011 - The Drum
Sheila King, a spunky 75-year-old woman from a small regional town with post-polio syndrome, is taking on Jetstar in a disability discrimination claim in the second highest court in our country.
Ms King's claim is that she was refused access to a Jetstar flight because there were already two passengers using wheelchairs on the flight she wished to board.
At great financial and personal cost to herself, she is not seeking any personal gain from this case. Rather she wants Jetstar to change its policy of imposing a limit on the number of people with disabilities who it will take on each flight.
Rather than quietly enjoying her retirement, Ms King is doing this because she wants to see Australians with a disability be able to get on a plane, in the same way as any other Australian. Unequal access to air travel limits the ability of people with disabilities to participate fully in work and leisure activities. With these practices occurring it's no wonder that workplace participation rates of people with disability are lower than most other OECD countries.
Indeed, Australia is alone in allowing its airlines to limit the number of passengers with disability. Quite simply, this would not happen in any other country.
All other countries have passed legislation which has the effect of making it much more difficult for airlines to discriminate against people with disabilities.
Sadly, in Australia, this is not the case. Only an individual with a disability who has been personally affected by a discriminatory policy can challenge that policy using discrimination law – and that is no easy feat.
In this case, Sheila has been fortunate to secure pro bono assistance and a grant from Commonwealth Attorney General's Department to cover some of the cost of Barristers in this case.
However, Ms King has paid over $5,000 so far in relation to expert reports, and faces potentially $30,000 in costs against her should she lose this case. She has also been paying to fly from her home town to Sydney to attend hearing on this matter.
In most discrimination cases, due to insufficient funding of advocacy and legal organisations, it is not unusual for an individual to turn up alone, or with a support person, to face a team of lawyers and executives.
If conciliation of a case is not successful or does not occur, the only option for the individual is to pursue a case through the very formal Federal Courts, at their own cost. If they lose in court, the individual must bear the legal costs of the other party.
Court awards in this jurisdiction often are less than costs involved in pursuing a discrimination matter. Therefore, the decision to litigate in a costs jurisdiction is made even more difficult when legal costs for the matter could easily be three or four times the potential compensation.
In addition to costs considerations, there are other barriers to accessing justice within the current discrimination framework – for example, barriers to physical access, the psychological costs and the time commitment involved in pursuing litigation. Add in a disability, or a poor grasp of English and these barriers multiply.
It's not surprising then that most "Goliath's" end up ‘winning' in discrimination matters. People with disabilities, or other minority groups do not have the resources to pursue them through the courts. It takes a pretty determined individual, like Ms King, to put their house and reputation on the line for little personal gain.
For this reason, more often than not, discriminatory policies and processes do not get challenged, as there is little incentive to change.
The Attorney General is currently looking at ways to improve discrimination laws.
Most importantly, we need to change the way in which discrimination laws are enforced.
The UK, Canada and the US all recognise that relying on vulnerable individuals to take action against discriminatory policies is a flawed process as the majority of these individuals do not have the resources, or persistence to pursue these matters, particularly where there is little or no personal gain.
They have introduced models that allow other agencies to pursue discriminatory policies. Some jurisdictions have refused operating licences to companies which discriminate against people with disability.
Advocates and lawyers have been arguing for these amendments for some time. The consolidation and reform of discrimination legislation is our opportunity to share the burden of fighting for equality, so that people like Ms King do not bear the burden of it all.
Joanna Shulman is the CEO of Redfern Legal Centre and one of the lawyers assisting Ms King with her case.
Read the article on the ABC website.
