Published on 26 June 2013.

Rosalind Croucher, President Australia Law Reform Commission, Reducing Legal Barriers for People with Disabilities, 19 June 2013 Old Parliament House, Canberra

Acknowledgment

To begin, let me thank the Attorney-General’s Department for organising such an important meeting. And, especially as it such an important place in our nation’s history may I acknowledge the Ngunnawal and Ngambri peoples, who are the traditional custodians of the land on which we meet—and I pay my respects to their elders, both past and present and acknowledge Indigenous guests attending today.

The reference to the ALRC

The proposed inquiry for the ALRC is particularly timely and coincides with the upcoming launch of DisabilityCare Australia, the national disability insurance scheme, to provide funding and support to eligible Australians with disability. The National Disability Insurance Scheme Bill 2013 was passed by Parliament on 21 March 2013. Disability Care Australia (formerly the National Disability Insurance Scheme) is a response to the Productivity Commission’s inquiry into a National Disability Long-term Care and Support Scheme.[1]

The proposed inquiry has two parts: equal recognition before the law’ and ‘ability to exercise legal capacity’ and, with respect to both, to consider where laws and legal frameworks within the Commonwealth jurisdiction deny or diminish these things.

At the time of the announcement of the inquiry, the Minister for Disability Reform, Jenny Macklin MP, said that ‘people with disability are entitled to the dignity that comes from being able to make choices over their own lives and ensuring that people with disability have access to the same rights and opportunities as Australians without disability is a hallmark of a just society’.[2]

As it is just over two decades since the introduction of the Disability Discrimination Act (DDA), it is appropriate to review aspects of the lived experiences of people with disability where laws and legal frameworks impede equality in some way.

The DDA is one of four Commonwealth Acts making it unlawful to discriminate on the basis of particular attributes: race, sex, disability, and age: Racial Discrimination Act 1975; Sex Discrimination Act 1984; Disability Discrimination Act 1992; and Age Discrimination Act 2004.

With respect to these Acts I note that a key component of Australia’s Human Rights Framework is the consolidation of these four pieces of legislation.[3] In November 2012 an exposure draft Human Rights and Anti-Discrimination Bill 2012 was released and was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. The Committee’s Report was released on 21 February 2013. In March 2013, the Government announced that, aside from amendments to the Sex Discrimination Act 1984 (Cth) in relation to sexual orientation, gender identity and intersex status, the consolidation process involved a number of issues requiring ‘deeper consideration’ and that the Attorney-General’s Department will ‘continue working on this project’.[4]

Unlawful discrimination sets the ‘hard edge’, as it were on the principle of equality. But the idea of equality of recognition and ability to exercise capacity draw upon a very wide and deep commitment. For example, at the international level—and sitting behind the suite of anti-discrimination statutes—are the seven key human rights treaties to which Australia is a party. As the draft Terms of Reference state that ‘the purpose of this review is to ensure that Commonwealth laws and legal frameworks are responsive to the needs of people with disability and to advance, promote and respect their rights’, these international rights instruments will be particularly important:

  • International Covenant on Civil and Political Rights (ICCPR)
  • International Covenant on Economic, Social and Cultural Rights (ICESCR)
  • Convention on the Rights of the Child (CRC)
  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
  • Convention on the Rights of Persons with Disabilities (CRPD)
  • Convention on the Elimination of All Forms of Racial Discrimination (CERD)
  • Convention against Torture (CAT).

If we focus on the key convention for the purposes of the proposed inquiry, the Convention on the Rights of Persons with Disabilities, the following general principles are stated:

  1. Respect for inherent dignity, individual autonomy including the freedom to make one’s including the freedom to make one’s own choices, and independence of persons;
  2. Non-discrimination (the DDA clearly sits here);
  3. Full and effective participation and inclusion in society (the Government’s Social Inclusion agenda reflects this principle);[5]
  4. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
  5. Equality of opportunity;
  6. Accessibility;
  7. Equality between men and women (the SDA fits in here);
  8. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

These will be fundamental framing principles in any inquiry looking at issues that touch on the rights of persons with disability.

The focus of the reference is on the recognition of rights and capacity and to remove any impediments to this in Commonwealth laws and legal frameworks. A long list of relevant areas are proposed for consideration:

  • access to justice and legal assistance programs
  • aged care
  • anti-discrimination law
  • board participation
  • contracts
  • disability services
  • electoral matters
  • employment
  • federal offences
  • financial services
  • giving evidence
  • holding public office
  • identification documents
  • jury service
  • marriage, partnerships, intimate relationships and parenthood
  • medical treatment
  • privacy law
  • restrictive practices
  • social security
  • superannuation, and
  • supported and substituted decision making.

The review is to have particular regard for the ways Commonwealth laws and legal frameworks affect children, Indigenous people, older people and women with disability.

Attorney-General Mark Dreyfus QC said that ‘Most of us take for granted the independent decisions we make about our lives. People with disability deserve the same opportunity. This inquiry is about maximising choice and autonomy for Australians with disability.’[6] These were also key ideas in the ALRC’s recently completed inquiry in the mature age space.[7]

The draft Terms of Reference set out that, in considering what if any changes to Commonwealth law could be made, the ALRC should consider:

  • how decision making by people with impairment that affects their decision making can be validly and effectively supported
  • presumptions about a person’s ability to exercise legal capacity and whether these discriminate against people with disability
  • use of appropriate communication to allow people with disability to exercise legal capacity, including alternative modes, means and formats of communication such as Easy English, sign language, Braille, and augmentative communications technology
  • how a person’s ability to independently make decisions is assessed, and mechanisms to review these decisions
  • legal or other recognition of supports for people with disability to make decisions for themselves (whether family/friends or paid supports) – both in relation to formal decisions and informal decisions
  • safeguards – are the powers and duties of decision making supporters and substituted decision makers effective, appropriate and consistent with Australia’s international obligations
  • recognition of where a person’s need for supports to exercise legal capacity is evolving or fluctuating (where a person with disability may be able to independently make decisions at some times but not others or where their ability to make decisions may grow with time), and
  • how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks.

State and territory laws will be crucial here, but the Commonwealth could provide a model. Autonomy and paternalism are powerful competing ideas in the discourse of substituted decision-making. The ALRC gave some consideration to this in its 1989 report, Guardianship and Management of Property (ALRC Report 52), which considered the desirability of legislation for the ACT.

NGOs will be key stakeholders in the proposed inquiry. The draft Terms of Reference are open for consideration until the 28 June. So if you have something to say about them, before the inquiry is officially set in motion, please do so.

Inquiry process[8]

Once the inquiry ‘kicks off’, the law reform process involves a number of steps: sizing up the problem within the constraints of the Terms of Reference; defining the conceptual/policy landscape in which the development of law reform recommendations will occur; consultation, consultation, consultation; and, finally, the report, containing recommendations for reform. Most importantly, we never start with answers, only questions.

On the one hand, ALRC reports and consultation documents give leverage at a high public level for achieving reform, providing a voice, through the consultative processes and their embodiment in the public documents (consultation papers and Report), in a coherent public way for key stakeholders on the issue the subject of each inquiry.

We are just at the beginning of this inquiry—and not even at the official starting point, which will happen when the draft terms of reference become final ones. It is the point where we have lots of questions and many people to talk to. Indeed, one of the most important features of ALRC inquiries is the commitment to widespread community consultation.[9] The draft Terms of Reference include prompts of those to consult in this inquiry.

The ALRC has been directed to identify and consult with relevant stakeholders including ‘people with disability and their representative, advocacy and legal organisations, the families and carers of people with disability, relevant Government departments and agencies, the Australian Human Rights Commission, and other key non-government stakeholders’. This is where you come in.

While the Terms of Reference are out for comment we will start our process of planning: particularly with respect to the consultation strategy, which we develop at the outset for each inquiry, as well as undertaking initial research. This inquiry – plus the Native title inquiry announced at the same time will require considerable thought.

We will have at least two consultation rounds throughout this inquiry before we report. We will have twelve months to do this—a pretty standard inquiry cycle. We first release an Issues Paper. Then we ‘hit the road’ talking to key stakeholders, government agencies, community groups, NGOs, academics, lawyers, and so on. We then pull all our preliminary thinking together in a Discussion Paper in which we will put out draft recommendations as ‘proposals’—flying some ideas way up the mast, maybe to bring them down a little, or a lot, but really testing the waters (happily to mix my metaphors). We will then hit the road again, with a wider round of consultations, finally leading to the report early next year. We seek, and press, for submissions to both our consultation documents, and this provides us rich material to inform our thinking and also to quote in our work.

Once the ALRC has completed its work on any inquiry, a report is presented to the Attorney-General, who must then table it in each House of Parliament ‘within 15 sitting days’ of that House after having received it.[10] Once tabled in Parliament, the report becomes a public document.[11] The report will not be self-executing—rather, each inquiry provides recommendations about the best way to proceed, but implementation is a matter for others.[12] But we do keep watch. Each Annual Report now provides a table of ‘Implementation Status’ of all ALRC Reports.[13]

We also continue the communication process after the inquiries end by producing fact sheets. For example, together with the release of the report, Family Violence and Commonwealth Laws (ALRC Report 117, 2012), the ALRC released fact sheets for the following communities:

  • Culturally and linguistically diverse communities (CALD)
  • Indigenous peoples
  • Lesbian, gay, bisexual, trans and intersex (LGBTI)
  • People with disability (PWD)

We also prepare podcasts,[14] contribute articles, do presentations, and so on.

How can you help?

The Terms of Reference are out for consultation until 28 June. In addition to providing comment, these are some of the things you can do:

  • Subscribe to our e-newsletters
  • Suggest people and groups for us to consult
  • Help us in understanding how we should consult effectively to reach the diverse communities embraced by the TOR
  • Encourage submissions
  • Suggest that the ALRC give presentations at relevant seminars/forums
  • Spread the word!

[1] Productivity Commission, Disability Care and Support (2011).

[2] Press release: http://www.attorneygeneral.gov.au/Mediareleases/Pages/2013/Second%20quarter/7June2013-NewAustralianLawReformCommissioninquiriesannounced.aspx

[3] Australian Government Attorney-General’s Department, Australia’s Human Rights Framework (2010).

[4] The Hon Mark Dreyfus QC MP (Attorney-General) and the Senator the Hon Penny Wong (Minister for Finance and Deregulation), ‘New Anti-Discrimination Laws to Cover Sexual Orientation, Gender Identity and Intersex Status’ (Media Release, 20 March 2013).

[5] Australian Government, The Social Inclusion Agenda, <www.socialinclusion.gov.au/> at 21 March 2013.

[6] Press release: http://www.attorneygeneral.gov.au/Mediareleases/Pages/2013/Second%20quarter/7June2013-NewAustralianLawReformCommissioninquiriesannounced.aspx.

[7] Access All Ages—Older Workers and Commonwealth Laws (ALRC Report 120), March 2013, 61–64.

[8] Our inquiry process is described on the ALRC website: www.alrc.gov.au.

[9] B Opeskin, ‘Measuring Success’ in B Opeskin and D Weisbrot (eds), The Promise of Law Reform (2005), 202.

[10] Australian Law Reform Commission Act 1996 (Cth) s 25.

[11] Ibid s 23.

[12] However, the ALRC has a strong record of having its advice followed. About 59% of the Commission’s previous reports have been fully or substantially implemented, about 29% of reports have been partially implemented, 4% of reports are under consideration and 8% have had no implementation to date: Australian Law Reform Commission, Annual Report 2005–06, 38.

[13] See the tables in the Annual Reports available on the ALRC website: www.alrc.gov.au.

[14] For example, Commissioner Jill McKeough prepared for the following podcast on the release of the Discussion Paper in the Copyright inquiry: http://www.alrc.gov.au/news-media/2011-2013/podcast-copyright-and-digital-economy-discussion-paper; and I did one on the completion of the Age Barriers inquiry: http://www.alrc.gov.au/news-media/2011-2013/podcast-age-barriers-work-final-report.