The Development of Disability Rights in Australia

By Holly Kendall

By Holly Kendall. This article is part of our October theme on disability rights. To read more on this topic, click here.

Disability isn’t something we like to think about. People with a disability have complex needs that society struggles to meet. There is no magic solution. Disability reminds us that we are vulnerable. Anyone of us could become disabled at any time.

As Australians we like to think of ourselves as egalitarian, but often this perception of equality fails to consider disadvantaged groups in the community. One of these groups is people with a disability. In Australia 760,000 people under the age of 65 have a severe or profound disability which means that they “always or sometimes need help with a core activity or task.”

How we treat people with disabilities is a marker of the integrity of the values of our society.

Before the introduction of the Disability Discrimination Act 1992 (Cth) it was legally permissible to refuse to allow a blind person with a guide dog to stay in a hotel, admit a deaf student to university because the university could not provide Auslan or equivalent services, and give a qualified person a job solely because the office building was not accessible to a person in a wheelchair.

This article examines what action has been taken and what still needs to be done to ensure that all Australians with a disability have the same rights and opportunities as other Australians.

It’s been 20 years since the Disability Discrimination Act was passed. The Act sought to “eliminate, as far as possible, discrimination against persons on the ground of disability in relation to work, accommodation, education, access to premises, clubs and sports, the provision of goods, access to facilities, services and land and the administration of government laws and programs.”

The Disability Discrimination Act was an important step towards creating formal equality. Significant barriers still remain to creating substantive equality. In 2004 the Productivity Commission undertook a Review of the Disability Discrimination Act 1992. It concluded that the effectiveness of the Disability Discrimination Act had been mixed. It had provided some benefits in making public transport more accessible, increasing opportunities for tertiary students and reducing discrimination in relation to some services. It had been relatively ineffective in reducing discrimination in employment, improving access to premises, increasing access to school level education and improving access to services like insurance.

The Productivity Commission found that the Disability Discrimination Act had been more effective in assisting people with mobility, sight or hearing impairments than people with a mental illness, intellectual disability, acquired brain injury, multiple chemical sensitivity or chronic fatigue syndrome, people with multiple disabilities and people living in institutions.

The Productivity Commission concluded that the Disability Discrimination Act had been “reasonably effective in reducing discrimination. But there is much more to be done before its objectives are achieved.” The Productivity Commission made recommendations about how the Disability Discrimination Act could be improved. Many of these have been implemented, for example, expanding discrimination to include indirect discrimination. It is clear from the Productivity Commission’s report that further action was required to create substantive equality.

In 2006 the international community created the Convention on the Rights of Persons with Disabilities and its Optional Protocol. Australia became a signatory in 2008. The Convention seeks to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” It places a responsibility on states to ensure that people with a disability do not face discrimination, are provided reasonable accommodation and choices about where and how they live and are given the opportunity to fully participate in community life. It places an obligation on states to take early intervention to assess the needs of people with a disability and provide educational, social and employment support amongst other things.

At the time of ratification the President of the Australian Human Rights Commission stated: “Ratification of this convention is not a statement that Australia already fully complies with the Convention in practice. Rather the Convention presents an agenda for action and gives new opportunities for accountability for how well rights are respected.” The introduction of the National Disability Insurance Scheme (NDIS) is an important step in meeting our obligations under the Convention and removing the barriers that prevent substantive equality in our community. In considering the creation of the NDIS the Productivity Commission found that “the current disability support system is underfunded, unfair, fragmented and inefficient. It gives people with a disability little choice, no certainty of access to appropriate supports and little scope to participate in the community.

The NDIS aims to provide long term, high quality support for around 410,000 people who have a permanent disability that significantly affects their communication, mobility, self care or self management. It is an insurance model that will assist Australians for the long term in the event of a significant disability. Anyone with or affected by a disability will be able to apply for a funded support package. Funding will be granted to people with a significant and permanent disability, whose assistance needs could not be met without taxpayer funding. The NDIS will assess needs and determine individual plans and budgets, help build community capacity for inclusiveness, monitor the costs of the scheme, assess its effectiveness and suggest improvements. Individual plans are intended to give people with a disability autonomy in determining what they need. Hopefully this will allow more people with a disability to live independently and become more involved in community activities and the economy.

The NDIS is ambitious. It will take time and money. The Federal Government has committed to initial funding for technical work to lay the foundation of the scheme, research on the needs of service providers and to support the first trial stage of implementation. Trials will be starting in 2013 with national coverage for those most in need by 2015. Implementation of the NDIS will have many barriers to overcome, not least of which will be political squabbling between the state and federal governments about funding and responsibilities. The success or failure of the scheme will depend on how it is delivered and the details, many of which are yet to be developed or revealed.

How we treat people with disabilities is a marker of the integrity of the values of our society. Australia has come a long way in protecting the rights of people with a disability. But there is still a long way to go. For too long, people with a disability have been denied the same quality of life as the rest of Australians. The NDIS, as well as ensuring that the rights of people with a disability are upheld, must be a national priority.