11.68 There are many concerns about the employment of people with disability in Australia, including those arising from lower levels of labour force participation and higher unemployment as compared to others; and the lowest employment participation rate for people with disability among OECD countries.
11.69 In addition, in response to the Issues Paper, 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 people with disability in the Commonwealth public service.
11.70 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 intend to make proposals in these areas.
11.71 The nature and operation of Commonwealth anti-discrimination legislation raises a range of significant issues for people with disability. These issues relate especially to factors which may limit the ability of people with disability to access the system, including:
the individualised nature of the complaint system;
issues of standing;
failure to cover intersectional discrimination;
costs associated with proceeding past conciliation;
reliance on, and the operation of, exceptions;
remedies and enforcement; and
the role, powers and resourcing of the Australian Human Rights Commission.
11.72 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 intend to make proposals in this area.
11.73 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) (DDA), and for submissions on other issues relating to insurance. The key concerns expressed by stakeholders with respect to people with disability and insurance relate 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 DDA.
11.74 Conversely, some stakeholders submitted that ‘laws and legal frameworks concerning insurance do not reduce the equal recognition of people with disability’ and that the operation of the underwriting process or the operation of the exemption under the DDA are appropriate.
11.75 Again, some of the issues highlighted by stakeholders do not relate directly to concepts of legal capacity or decision-making capability, and the ALRC does not intend to make proposals in these areas.
11.76 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 age rely;
review of insurance exceptions under Commonwealth, state and territory anti-discrimination legislation as they apply to age 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 mature age persons.
Parenthood and family law
11.77 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 the Discussion Paper. For example, issues concerning the appointment of case and litigation representatives and protecting vulnerable witnesses often arise in family law proceedings and are discussed in Chapter 7. Similarly, issues relating to sterilisation are discussed in Chapter 10.
11.78 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 examination of the operation of state and territory child protection systems extends beyond the Terms of Reference for this Inquiry.
11.79 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 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.
11.80 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.
Holding public office
11.81 People with disability are significantly under-represented in public office. The main barrier to holding public office for persons with disability may be the negative assumptions about their ability to perform the functions in a role of trust. The Law Council of Australia acknowledged that this social disadvantage, rather than any legal restriction, affects the capacity of people to hold public office, as well as to engage in a profession, vocation or other activities.
11.82 The qualifications of members of the House of Representatives and Senators are set out in the Australian Constitution. They include eligibility as an elector under the Commonwealth Electoral Act 1918 (Cth). As discussed in Chapter 9, the ALRC proposes amendment of the ‘unsound mind’ provision contained in the Commonwealth Electoral Act.
11.83 Under the Australian Constitution, a Commonwealth judicial officer may be removed on an address from both Houses of the Parliament on the ground of ‘proved misbehaviour or incapacity’. A statutory process for assisting the Parliament to consider removal has been established by the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth). Under this Act, the Parliament may establish a commission to investigate and report on an allegation of misbehaviour or incapacity, so that the Parliament is well-informed about the decision at hand.
11.84 The Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth) modified various related laws such as the Family Law Act 1975 (Cth) and the Federal Court of Australia Act 1976 (Cth) to provide a statutory basis for the heads of jurisdiction to deal with complaints about judicial officers, including establishing a conduct committee.
11.85 The ALRC does not propose any change to these laws because they appear to provide for an impartial and considered approach to the assessment of decision-making ability. These 2012 laws have also not yet been tested. In time, the ALRC’s National Decision-Making Principles may inform the decisions of Parliament and the heads of jurisdictions of Commonwealth courts.
See, eg: Australian Bureau of Statistics, ‘Australian Social Trends’ (Cat No 4102.0).
Organisation for Economic Co-Operation and Development, Directorate for Employment, Labour and Social Affairs, Sickness, Disability and Work, Background Paper for High-Level Forum, Stockholm, 14–15 May 2009.
See, eg, 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; Women’s Legal Services NSW, Submission 57; 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 Dr 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.
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 88. See also ADACAS, Submission 29; The Illawarra Forum, Submission 19.
D Bryant, Submission 22.
In 2010, the Hon Kelly Vincent MLC, South Australia, from the ‘Dignity for Disability’ party was the first member of parliament in Australia to be elected on a disability platform.
Law Council of Australia, Submission 83.
Australian Constitution ss 16, 34.
Similar provisions exist at state level and, in Victoria, the constitution itself explicitly provides that a person who ‘by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting is not entitled to be enrolled’: Constitution Act 1975 (Vic) s 48(2)(d).
Commonwealth Electoral Act 1918 (Cth) s 93(8).
Australian Constitution s 72. Similar grounds apply for the removal of Commissioners of the ALRC: Australian Law Reform Commission Act 1996 (Cth) ss 17, 17A.
The heads of jurisdiction are the Chief Justices of the Federal Court and the Family Court and the Chief Federal Magistrate.