Accountability, safeguards, review and complaint

113. Article 12 of the CRPD provides that States Parties shall ensure that ‘all measures that relate to the exercise of legal capacity provide for proportionate, appropriate and effective safeguards to prevent abuse’. Such safeguards should ensure that measures relating to the exercise of legal capacity:

  • respect the rights, will and preferences of the person with disability;

  • are free of conflict of interest and undue influence;

  • are proportional and tailored to the person’s circumstances;

  • apply for the shortest time possible; and

  • are subject to regular review by a competent, independent and impartial authority or judicial body.[119]

114. In addition to ensuring compliance with these elements, there is a need to ensure there are broader safeguards in the form of appropriate monitoring and audit mechanisms as well as avenues for review and the making of complaints in each of the legislative areas under review. There are also a number of relevant system-wide safeguards. These include anti-discrimination law, the general protections provisions under the Fair Work Act 2009 (Cth), competition and consumer protection law, and administrative law. These legislative safeguards all provide frameworks within which people with disability can challenge actions and decisions that may deny or diminish their equal recognition before the law or their ability to exercise legal capacity.

Anti-discrimination law

115. Anti-discrimination legislation exists at Commonwealth, state and territory levels. It prohibits both direct and indirect discrimination against people on the basis of their disability across a range of areas.[120]

116. At the Commonwealth level, the DDA and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) are the key pieces of legislation relevant to this Inquiry. The operation of the DDA is outlined at paragraphs 40 to 42 above. The AHRC Act establishes the AHRC, and outlines its functions as well as a number of procedural matters.[121]

117. There appear to be range of systemic issues relating to the nature and operation of the anti-discrimination system which may limit the ability of people with disability to access the system. Broadly, these include:

  • the individualised nature of the complaint system;

  • failure to cover intersectional discrimination;[122]

  • costs associated with proceeding past conciliation;

  • reliance on, and the operation of, exceptions;[123]

  • coverage; and

  • the role and powers of the AHRC.[124]

118. The UNCRPD has expressed its concern that ‘the scope of protected rights and grounds of discrimination in the [DDA] is narrower than under the [CRPD] and does not provide the same level of legal protection to all persons with disabilities’.[125] In particular, the Committee noted the need to strengthen the DDA to address intersectional discrimination.[126]

119. In the context of the DDA, there appear to be uncertainty and concerns about concepts such as ‘reasonable adjustments’[127] and ‘unjustifiable hardship’[128] and their operation in practice.

120. The ALRC is interested in stakeholder comments on necessary changes to the DDA to ensure it provides an accessible and appropriate avenue of complaint for people with disability who experience discrimination.

Question 6. What issues arise in relation to Commonwealth anti-discrimination law that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to the Disability Discrimination Act 1992 (Cth) to address these issues?

General protections provisions

121. The general protections provisions under the Fair Work Act provide statutory protection for people with disability seeking to challenge discriminatory treatment in the employment context.

122. Under the Fair Work Act, national system employees are entitled to a range of general workplace protections.[129] These general protections, among other things, prohibit an employer from taking ‘adverse action’ against an employee or prospective employee on the basis of a ‘workplace right’.[130] Measures that may constitute ‘adverse action’ taken by an employer against an employee include dismissal, injury or discrimination, or, in the case of a prospective employee, refusing to employ or discriminating in the terms or conditions of offer,[131] as well as threatening any of the above.

123. The Fair Work Act prohibits specific forms of ‘adverse action’ being taken for discriminatory reasons and outlines a number of grounds of discrimination.[132] Disability is a specific protected attribute. As a result, people with disability may be able to pursue a claim of discrimination in the context of employment under the general protections provisions.[133]

124. Stakeholders and commentators have identified a range of general difficulties with the current general protections provisions. The ALRC is interested in stakeholder comments on how the provisions are operating in practice and whether they require amendment to ensure they are useful for people with disability and contribute to the equal recognition of people with disability before the law and their ability to exercise legal capacity.

125. In addition, while the general protections provisions only apply in the context of employment, there is substantial overlap between the provisions and Commonwealth anti-discrimination legislation. The introduction of general protections provisions provides employees with an additional choice of forum for complaints of discrimination; although that choice ‘can be a complex exercise’.[134] As a result, the ALRC also seeks comments on what ways, if any, Commonwealth anti-discrimination legislation or the Fair Work Act could be amended to improve or clarify their interaction in circumstances of disability discrimination.

Question 7. In what ways, if any, should the general protections provisions under the Fair Work Act 2009 (Cth) be amended to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?

Question 8. There is substantial overlap between the general protections provisions under the Fair Work Act 2009 (Cth) and Commonwealth anti-discrimination legislation. In what ways, if any, should this legislation be amended to improve or clarify their interaction in circumstances of disability discrimination?

Administrative law

126. Administrative decisions may affect people with disability across many areas. Such decisions include, for example, those made by Centrelink in relation to the Disability Support Pension,[135] decisions made in relation to Medicare services and decisions on income tax.[136]

127. Administrative law regulates government decision-making to ensure decisions affecting people are fair, efficient and effective. There are a range of potential avenues for review of government decisions in the Commonwealth system:[137]

  • a request for reasons to be given;[138]

  • an internal review by officers in the agency;

  • merits review of the decision by an independent tribunal such as the Administrative Appeals Tribunal (AAT);[139]

  • judicial review of the lawfulness of most statutory administrative decisions[140] as well as the actions of Commonwealth officers;[141] and

  • Ombudsman investigation of complaints of government maladministration.[142]

128. Difficulties experienced by people with disability in pursuing review of government decisions may include:

  • lack of knowledge about the avenues of review;

  • navigating complex processes; and

  • concerns about not wanting to ‘rock the boat’ or challenging government authority where it may result in a loss of services or payment.

129. There may be particular problems for young people with disability, Aboriginal and Torres Strait Islander people with disability and people with disability from culturally and linguistically diverse (CALD) backgrounds in navigating the administrative law system.

130. Within the administrative law framework, there have been a number of developments to improve accessibility of information for people with disability. For example, in response to the commencement of the NDIS, the AAT established a disability division and appointed new members to review decisions by the NDIA.[143] Other initiatives that may facilitate the participation of people with disability in administrative review at the AAT include:

  • an Easy English guide to the AAT;[144]

  • a video message about the AAT review process;[145]

  • a Practice Direction for decisions relating to NDIA decisions;[146] and

  • disability awareness training of staff and members.

131. Administrative law is an important mechanism through which citizens may hold the government accountable for their decisions. People with disability are users of a range of government services, including health, disability services and social security. The ALRC is interested in the experiences of people with disability seeking review of government decisions, particularly the aspects of the law or legal frameworks which assisted or hindered their exercise of rights.

Question 9. What issues arise in relation to review of government decisions that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to administrative law to address these issues?

Competition and consumer law

132. People with disability face a variety of issues relating to competition and consumer law, ranging from being unable to access housing that does not accommodate their needs to having difficulty understanding consumer contracts. Consumer complaints are among the most common legal problems facing Australians,[147] including for people with disability.[148]

133. A range of consumer law issues may arise for people with disability, such as:

  • in relation to consumer guarantees on aids, equipment and assistive technologies, where required;[149]

  • understanding contract terms for people with cognitive disability, for example, contracts with credit reporting agencies to conduct and correct credit reports; and

  • complaint and dispute resolution.[150]

134. The object of the Competition and Consumer Act 2010 (Cth) is to ‘enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection’.[151] The first limb of the Competition and Consumer Act relates to competition. As the regulator, the Australian Competition and Consumer Commission (ACCC) must apply rules to make sure that businesses compete fairly with each other, resulting in greater choice for consumers, reduced prices and improved quality of goods and services.[152] The test for anti-competitive conduct is whether or not it has ‘a purpose, effect or likely effect’ of substantially lessening competition.[153] People with disability are affected by ‘substantially lessened competition’[154] in the market if, for example, there are only two suppliers of a specialist service like making vehicle modifications in a state and they agree with each other to set the same high price for the service.[155]

135. The second limb of the Competition and Consumer Act relates to fair trading and consumer protection. The Australian Consumer Law (ACL) is a single, national consumer law, introduced in 2011.[156] The ACL covers unfair contract terms, consumer rights protection, product safety law, unsolicited consumer agreements covering door to door and telephone sales and lay-by agreements.[157] The ACL is enforced by the ACCC and each state and territory’s consumer agency. The Australian Securities and Investments Commission (ASIC) enforces aspects of the ACL relating to financial services.

136. The National Consumer Credit Protection Act 2009 (Cth) and related legislation and regulations prescribe responsible lending practices.[158] Responsible lending obligations apply to licensed lenders such as banks, credit unions and finance companies and lessors for consumer leases and credit assistance providers such as mortgage and finance brokers.[159] The National Credit Consumer Protection Act stipulates that a credit service must be not ‘unsuitable’ for the consumer. The assessment of suitability must be undertaken by the business with regard to the circumstances of the consumer by making all reasonable enquiries.[160] This may provide a useful model for other laws in protecting the rights of people with disability, in particular because the onus of proof is reversed and it allows accommodation of the various circumstances of people with disability as consumers. The ALRC is interested in stakeholder comments on the appropriateness of this model and other competition and consumer law issues that affect the equal recognition and legal capacity of people with disability.

Question 10. What issues arise in relation to competition and consumer law that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to competition and consumer law to address these issues?


137. Privacy is an overarching issue across the Inquiry. It also requires consideration in the specific legislative areas and systems under review. Respect for the privacy of people with disability is inextricably linked to their dignity and autonomy. Article 22 of the CRPD protects the privacy of personal and health information of people with disability.

138. Some of the key privacy issues for people with disability may arise from:

  • information sharing between government departments and agencies, for example, between Centrelink and the Australian Taxation Office;

  • information sharing among health practitioners for medical treatment; and

  • living with family, in shared accommodation or residential care facilities and the affect of such arrangements on intimate relationships.

139. The Privacy Act 1988 (Cth) is the principal piece of Commonwealth legislation that regulates privacy and sets out an individual’s right to protection of their personal information. [161] Ten National Privacy Principles contained in the Privacy Act regulate the collection, storage and use of personal information by Australian Government agencies, large private sector organisations and certain small businesses.[162] The Office of the Australian Information Commissioner (OAIC) protects an individual’s personal information underthe Privacy Act and other privacy-related legislation, among other functions.[163] The OAIC receives complaints about breaches of privacy, may initiate an own-motion investigation regarding an interference with privacy and can conduct privacy audits of Australian and ACT government agencies.[164] Various state and territory laws and legal frameworks also regulate privacy.[165]

140. Privacy of health information may be a significant concern for people with disability. Health and genetic information is ‘sensitive information’ that warrants stronger protections under the current and proposed Privacy Principles.[166] Separate Commonwealth legislation protects healthcare identifiers[167] and electronic health records.[168]

141. From July 2012, Australians have been able to choose to register for their own eHealth record.[169] An eHealth record is ‘an electronic summary of an individual’s key health information’.[170] Initially, it contains basic patient information. As the eHealth record system develops, it will contain health information such as treatments, medications and allergies,[171] which will allow the patient and doctors, hospitals and other healthcare providers to view and share information.[172]

142. People with disability may be particularly wary of the possible mishandling of their health information. For example, people with psychosocial disability are reportedly apprehensive about disclosing their health conditions and treatment due to the stigma attached to their conditions.[173] Under the existing legislative framework for eHealth,[174] there are protections against the mishandling of information. Individuals can control their own eHealth record, including by choosing to restrict which healthcare providers can access it and what information is included.[175] Unauthorised collection, use or disclosure of eHealth record information is both a contravention of the Personally Controlled Electronic Health Records Act 2012 (Cth) and an interference with privacy under the Privacy Act.[176] In November 2013, a review of the Personally Controlled Electronic Health Record program was announced to identify issues with implementation, including key clinician and patient usability concerns.[177]

143. The ALRC invites comment on how the privacy concerns of people with disability, as applicable in each of the specific legislative areas under review, could be addressed by changes to Commonwealth laws and legal frameworks.

Question 11. What issues arise in relation to privacy that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to privacy to address these issues?