Royal Commission: Analysing the recommendations on Disability Rights Act

One of the recommendations from the Disability Royal Commission that’s received a lot of attention sits in Volume 4: their recommendation that Australia should legislate a Disability Rights Act. This act would implement the Convention on the Rights of Persons with Disabilities (CRPD) into Australian law and require government and people acting on behalf of government to uphold disability rights when they make decisions about a person with disability.  

It’s important to know that just because Australia has signed the CRPD, it doesn’t necessarily mean that all the rights included are things that the government automatically provides for or protects.  

Some of the ways that the treaty is implemented in Australia is the NDIS Act (which provides services for some people with a disability to participate in the community) and the Disability Discrimination Act (which makes some actions of discrimination against a person with a disability illegal), and some state and territory laws, such as the Charter of Human Rights and Responsibilities Act in Victoria.  

But, overall, the DRC thinks that CRPD rights aren’t integrated enough into everyday government laws, policies and practices and can go further.  

Australia still has many laws on the books that are discriminatory, such as those about fitness to stand trial and those under guardianship or administration orders.  When someone does complain about a human rights breach there’s very little power to fix the problem – most complaints can’t force a government to change their behaviour or a department to stop an act of discrimination or receive compensation for the harm that they’ve suffered because of a breach.  

The DRC has proposed a Disability Rights Act (or from here the ‘DRA’) to address these issues. The idea is that the DRA will sit above other laws and make sure that government agencies or other decision-makers must comply with: 

  • non-discrimination and equality for people with disability before the law; 
  • equal recognition of people with disability before the law; 
  • the right for people with disability to live free from exploitation, violence and abuse; 
  • the right for people with disability to have liberty and security of person; 
  • the right for people with disability to have equitable access to health services; 

The way that the DRA would make sure these rights are upheld is in two main ways: 

  1. Imposing duties on government bodies to consider disability rights 

The first, and in the DRC’s view the primary, way that a DRA would make a difference is to require government bodies who administer laws that affect people with disability to consider disability rights. This would be required to happen both when designing policies and laws, as well as on the ground when a government department (such as Centrelink or a Housing Authority) exercises their powers. Anything that limits the rights above must do so in a proportionate way – the DRC has recommended that they should only do so where ‘it is reasonable and justified to do so in a free and democratic society based on human dignity, equality and freedom’ at recommendation 4.17. 

There’s also a requirement at recommendation 4.13 that those departments provide interpreters when needed because of a disability, and that all information is provided in accessible formats (at recommendation 4.14). Government departments would also be required to consult with people with disability when planning new initiatives as per recommendation 4.11, as well as to promote disability equality and inclusion generally at recommendation 4.12.  

If a person who interacts with the government still experiences discrimination or a breach of their rights, the DRC thinks they should go to the next step in the process… 

  1. Placing laws and government departments under the oversight of a National Disability Commission and the Courts 

The National Disability Commission (the Commission), which is proposed in other parts of the report, would also be the responsible agency for administering disability rights under the DRA. They would have powers to enter agreements with agencies they’ve found to breach disability rights and go to court to seek enforceable court orders where they can’t reach an agreement with an agency. The Commission is designed to avoid the responsibility and cost of addressing breaches of disability rights falling on people with disability themselves, as per recommendations 4.18 and 4.19.  

Importantly, the Commission will be responsible for receiving complaints from the public about potential breaches and would have investigative powers to obtain information and interview people about those cases. The recommendations also stress that an application to federal court should be able to be brought by people and representative organisations even if the Commission decides to not take on a complaint.   

The DRC has also been very clear that there needs to be compensation available to people who experience harm because of a human rights breach. This is a significant step – very few human rights schemes in Australia are set up to help remedy a breach beyond changes to policies and/or apologies to the person affected. This is a positive step, and the DRC makes some very positive comments about why this is needed at recommendation 4.20 and pages 239-240. Essentially, it ensures that the significant power imbalance between government departments and the harms they can cause is taken seriously. 

Next Steps 

As you can probably tell, the recommendations are broad! While the DRC sets out a framework for the DRA and the Commission, they are clear that a lot of the specific details need be worked out in a co-design process with people with disability.  

One of the big areas that will be relevant for advocates is the new complaints mechanism that’s recommended. We are encouraged that the Commission has highlighted the effectiveness and benefits of indepdent advocacy and advocates generally throughout their reports, and believe there would likely be opportunities to help contribute to the effectiveness of a disability rights act should  that come to pass. Check out pages 124-125 of the report for how Advocacy is essential to embedding disability rights in our society and culture. 

Striking Down Laws 

A lot of the DRC report talks about government departments and individuals rather than laws generally. A person deciding on behalf of a government department might do something that contravenes disability rights, but whether a court will have the right to strike down a law is likely to be something that attracts significant attention. The report talks about the issues of incompatible laws at pages 112-115 and recommends that the court could make any order it feels appropriate at recommendation 4.20.  

This would likely include things like declarations and injunctions that could potentially stop a law from being in effect, but the recommendations stop short of giving a framework for how this might operate (and is silent on whether a government could override such a declaration).  

One example regularly brought up by advocates is the limitation on joining the NDIS if you are over 65. The CRPD makes no distinction on what rights a person has because of their age – they are entitled to the same support and accommodations as the rest of the community. 

Similarly, the Migration Act discriminates against migrants and refugees with a disability by forcing the minister to assess ‘the cost to the community’ of services required when considering an application. The Migration Act does this by being exempt from the Disability Discrimination Act, and we would hope that any DRA can assess whether an  exemption is reasonable and proportionate (spoiler: the disability community thinks it isn’t).  

If somebody went to court and won compensation based on a breach of disability rights, you’d think that the government would be keen to limit any cases that crop up in the future and change the relevant policy or law, but a lot of that is still to be determined. We think this will be one of the big points in the future co-design process and an important thing to clarify and fight for the most robust set of rights possible. 

A Disability Rights Act vs a universal Human Rights Act 

Many feel that enacting a Disability Rights Act without implementing other human rights treaties would be limited in how much it achieves. There are many rights included in the CRPD that intersect with rights in other treaties, such as those in the International Covenant on Economic, Social and Cultural Rights (ICESCR which provides rights such as rights to a home, health, education, and social security) or the International Covenant of Civil and Political Rights (which provides rights like equal treatment before the law, right to life and freedom from torture and other cruel, inhuman or degrading treatment). 

It’s worth noting that the CRPD does replicate some of these rights (article 28 for example details the right for people with a disability to have an adequate standard of living and social protection, like the social security clause in the ICESCR) in their own document. A Disability Rights Act may be able to protect many of the rights that those other treaties speak to through the lens of disability – but a little bit indirectly.  

But a core principle of human rights is that they are indivisible. Certain rights can’t receive preference above another and one type of human rights cannot be fully enjoyed without the full set. Failing to have other means of addressing human rights breaches outside of the disability sphere may only serve to limit the utility of the efforts. A smaller part of a human rights framework might be easier to take back rather than the full assortment of rights for everyone.  

Conversely, the DRC does give us a framework to work from, and offers a direct and reasonably clear framework to get started and begin pressuring the government to get some runs on the board. 

Either way, as the DRC notes, ‘A human rights approach goes beyond including rights in law or policy – it requires a combination of legislative, administrative and other measures’ to realise the rights of people with disability. A disability or broader human rights act would be a significant step, but only one part of a bigger picture.   

As always, there’s plenty more to do! The second half of volume 4 talks about amendments that could be made to the Disability Discrimination Act – stay tuned for our analysis.