11.81 There are many concerns about the employment of persons with disability in Australia, including those arising from lower levels of labour force participation and higher unemployment, compared to others; and the lowest employment participation rate for persons with disability among OECD countries.
11.82 Stakeholders raised concerns about:
the relationship between employment and social security systems;
the operation of the Job Services Australia and Disability Employment Services system, including the conduct of employment services assessments;
the operation of Australian Disability Enterprises;
the operation of the supported wage system and business service wage assessment tool (and proposed changes); and
the declining rate of employment of persons with disability in the Commonwealth public service.
11.83 While these are important issues in the lives of persons with disability, the issues do not relate directly to concepts of legal capacity or decision-making ability, and the ALRC does not make recommendations in these areas.
11.84 The nature and operation of Commonwealth anti-discrimination legislation raises a range of significant issues for persons with disability. These issues relate to factors which may limit the ability of persons with disability to access the anti-discrimination complaints system, including:
- the individualised nature of the system;
- issues of standing;
- failure to cover intersectional discrimination;
- costs associated with proceeding past the conciliation stage of complaints;
- reliance on, and the operation of, exceptions in legislation;
- coverage of laws;
- positive duties;
- remedies and enforcement; and
- the role, powers and resourcing of the Australian Human Rights Commission.
11.85 These are systemic concerns about anti-discrimination law and practice and, in the light of this and the significant work that has been undertaken in this area in recent years, the ALRC does not make recommendations in this area in this Report.
11.86 In the Issues Paper, the ALRC asked what changes, if any, should be made to the insurance exemption under the Disability Discrimination Act 1992 (Cth), and for submissions on other issues relating to insurance. The key concerns expressed by stakeholders with respect to persons with disability and insurance related to:
- the availability of, information about, and the cost of insurance;
- the operation of policy exclusions, including for example in relation to pre-existing conditions and mental illness;
- the relevance, transparency and accessibility of the actuarial and statistical data on which disability-based insurance underwriting and pricing occurs; and
- reliance on the insurance exemption under the Disability Discrimination Act.
11.87 Conversely, some stakeholders submitted that ‘laws and legal frameworks concerning insurance do not reduce the equal recognition of people with disability’ and that it is unnecessary to examine the operation of the underwriting process or the exemption under the Disability Discrimination Act.
11.88 Again, some of the issues highlighted by stakeholders do not relate directly to concepts of legal capacity or decision-making ability, and the ALRC does not make recommendations in these areas. This approach was endorsed by the Insurance Council of Australia, which expressed its willingness to discuss with disability organisations ways of improving access to general insurance for those with a disability.
11.89 There have been a number of recent inquires which have dealt with these matters. For example, in many respects the concerns mirror those expressed in the ALRC’s Age Barriers to Work Inquiry. The conclusions reached in the report, Access All Ages—Older Workers and Commonwealth Laws, may also be applicable in the context of disability, including in relation to:
- the need for clear and simple information about available insurance products;
- the desirability of an agreement between the Australian Government and insurers requiring the publication of data upon which insurance offerings based on disability rely;
- review of insurance exceptions under Commonwealth, state and territory anti-discrimination legislation as they apply to disability as well as the development of guidance material about the application of any insurance exception under Commonwealth anti-discrimination legislation; and
- amendment of the General Insurance Code of Practice and the Financial Services Council Code of Ethics and Code of Conduct to include diversity statements or objects clauses that encourage consideration of the needs and circumstances of a diverse range of consumers, including persons with disability.
Parenthood and family law
11.90 The Terms of Reference identify parenthood and family law as an area for consideration in this Inquiry. Some of the issues which arise are referred to in other parts of this Report. For example, issues concerning the appointment of case and litigation representatives and protecting vulnerable witnesses arise in family law proceedings and are discussed in Chapter 7. Similarly, issues relating to sterilisation are discussed in Chapter 10.
11.91 Another issue raised by stakeholders was concern about the removal of children from parents with disability, particularly through the operation of the child protection system in states and territories. However, as outlined in Chapter 1, the focus of the ALRC’s work is on Commonwealth laws and legal frameworks, and the examination of the operation of state and territory child protection systems extends beyond the Terms of Reference for this Inquiry.
11.92 Some stakeholders also raised issues relating to the effect that a parent having disability may have on parenting proceedings in the Family Court. However, the Hon Chief Justice Diana Bryant AO of the Court expressed the view that,
insofar as it is being suggested that the Act discriminates against parents with an intellectual disability, or that the presence of an intellectual disability is of itself a disqualifying factor in an application in which a parent is seeking to spend substantial time with their child, I believe those views are misconceived.
11.93 In any event, these concerns focus on the application by judges of the primary and secondary considerations in parenting matters under ss 60CC(2) and 60CC(3) of the Family Law Act 1975 (Cth) and are outside the scope of this Inquiry.
See, eg, Australian Bureau of Statistics, ‘Australian Social Trends’ (Cat No 4102.0).
Organisation for Economic Co–Operation and Development, ‘Sickness, Disability and Work’ (Background Paper for High–Level Forum, Stockholm, 14–15 May 2009).
See, eg, People with Disabilities WA and Centre for Human Rights Education, Submission 133; Legal Aid Qld, Submission 64; Redfern Legal Centre, Submission 46; Deaf Australia, Submission 37; Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20.
See, eg, Law Council of Australia, Submission 83; National Association of Community Legal Centres and Others, Submission 78; Anti-Discrimination Commissioner (Tasmania), Submission 71; Children with Disability Australia, Submission 68; Coordinating Committee of Women’s Legal Services Australia, Submission 70; Legal Aid Victoria, Submission 65; Legal Aid Qld, Submission 64; Spinal Cord Injuries Australia, Submission 63; Queenslanders with Disability Network, Submission 59; National Seniors Australia, Submission 57; Vicdeaf, Submission 56; Disability Discrimination Legal Service, Submission 55; Mental Health Council of Australia, Submission 52; National Disability Services, Submission 49; Central Australian Legal Aid Service, Submission 48; Redfern Legal Centre, Submission 46; MDAA, Submission 43; Public Interest Advocacy Centre, Submission 41; B Arnold and W Bonython, Submission 38; Cairns Community Legal Centre, Submission 30; Equal Opportunity Commission of South Australia, Submission 28; Deaf Society of NSW, Submission 24; Carers NSW, Submission 23; Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20; Insurance Council of Australia, Submission 08; Mental Health Coordinating Council, Submission 07; Office of the Public Advocate (Qld), Submission 05; Family Planning NSW, Submission 04.
See, eg, Exposure Draft Human Rights and Anti-Discrimination Bill 2012 (Cth); Senate Legal and Constitutional Affairs Committee, Review of Exposure Draft Human Rights and Anti-Discrimination Bill 2012 (Cth), February 2013 (and submissions to the Senate Committee); Attorney-General’s Department, Consolidation of Commonwealth Anti-Discrimination Laws, Discussion Paper (2011) and submissions in response to the Discussion Paper.
See, eg, Anti-Discrimination Commissioner (Tasmania), Submission 71; Mental Health Council of Australia, Submission 52; Physical Disability Council of NSW, Submission 32.
Insurance Council of Australia, Submission 08. See also Financial Services Council, Submission 35.
Insurance Council of Australia, Submission 105.
Australian Law Reform Commission, Access All Ages—Older Workers and Commonwealth Laws, Report No 120 (2013).
See, eg, G Llewellyn, Submission 82; Anti-Discrimination Commissioner (Tasmania), Submission 71; ADACAS, Submission 29; Office of the Public Advocate (Vic), Submission 06. See also Office of the Public Advocate (Vic), ‘What Even Happened to the Village? The Removal of Children from Parents with a Disability’ (Report 1: Family Law—Hidden Issues, December 2013).
See, eg, Office of the Public Advocate (Vic), above n 119. See also ADACAS, Submission 29; The Illawarra Forum, Submission 19.
D Bryant, Submission 22.