287. People with disability who are also members of particular disability communities often face intersectional problems and have particular experiences and perspectives across a range of areas.
288. The Terms of Reference ask the ALRC to have particular regard for the ways Commonwealth laws and legal frameworks affect people with disability who are also children, women, Indigenous people, older people, people in rural, remote and regional areas, people from culturally and linguistically diverse backgrounds and lesbian, gay, bisexual, transgender and intersex people.
289. The ALRC welcomes stakeholder feedback about the experiences of people with disability from these particular groups. The ALRC is also interested in comment on the ways in which Commonwealth laws and legal frameworks could be amended or adapted to ensure people from these groups are recognised as equal before the law and are able to exercise their legal capacity.
290. There are approximately 290,000 children with a disability in Australia. Of this number, over half have a profound or severe disability and about one fifth have a moderate or mild disability.
291. Article 7 of the CRPD protects the right of children with disability to enjoy all of their rights on an equal basis with other children and ensures that their ‘best interests’ will be a primary consideration in all state actions concerning them. Article 7(3) of the CRPD relates to the exercise of legal capacity by children with disability and states that they should ‘express their views freely on all matters affecting them’ with due consideration for their age and maturity and assistance that is appropriate to the child.
292. The National Framework for Protecting Australian’s Children 2009–2020 (the National Framework for Children) commits to reducing child abuse and neglect and has identified disability as a risk factor for abuse and neglect. However, the UNCRPD has noted that there is no comprehensive national policy for children in Australia that articulates how the rights of children with disability should be implemented.
293. Other issues affecting children and young people with disability may relate to the role of parents and other people who provide care for them, the removal of children from parents with intellectual disability, their living arrangements, including problems stemming from young people with disability being cared for in aged care facilities and the over-representation of children and young people with disability in the juvenile justice system.
294. There are about two million women with disability in Australia. Almost 700,000 women and girls with a disability live in rural and remote Australia. Women with disability face multiple challenges as they may be discriminated against both on the basis of gender and the basis of their disability. Women with disability may also confront additional societal challenges as mothers and carers.
295. The UN Convention on the Elimination of Discrimination against Women provides for women’s equality before the law. The CRPD obliges a State Party to take all appropriate measures to ensure the full and equal enjoyment of all human rights by women with disability, recognising the ‘multiple discrimination’ they face.
296. There are a number of issues affecting women with disability. These include concerns related to bodily integrity and economic opportunities. Women and girls with disability are often at greater risk of violence, abuse and neglect, both within and outside the home. Coerced or involuntary sterilisation of women with disability is considered to be an infringement of the right to the personal integrity of the person.
297. Women with disability are also particularly vulnerable to becoming victims of crime, specifically sexual assault. The National Plan to Reduce Violence against Women and their Children 2010–2020 aims to address the concern that women with a physical or intellectual disability are more likely to experience domestic violence and the violence is likely to be more severe and continue for longer.
298. Economic disadvantages affect the quality of life for women with disability. Women and men with disability appear to have different economic prospects. Women with disability are less likely to be in the paid workforce and have lower incomes than men with disability. They are also more likely to be sole parents or in their parental family than men with disability.
Aboriginal and Torres Strait Islander peoples
299. Data on disability among Aboriginal and Torres Strait Islander people is limited, but the prevalence of disability is estimated at more than double that of the non-Indigenous population. Aboriginal and Torres Strait Islander children aged 0–14 years have much higher rates of disability than non-Indigenous children (14.2% compared with 6.6%).
300. There are various explanations of the high incidence of disability in the Aboriginal and Torres Strait Islander communities. Disability may be attributable to socio-economic disadvantage and exposure to high risk factors such as poor nutrition and substance abuse. There may also be cultural reasons, for example, as ‘disability’ is not a concept that is recognised among some Aboriginal and Torres Strait Islander communities. Where it is understood, it may be dismissed as insignificant or irrelevant to their identity, leading to Aboriginal and Torres Strait Islander people not identifying themselves as people with disability. Further, often the impact of past removal from family and community deters Aboriginal and Torres Strait Islander people from seeking government assistance.
301. All Australian governments have pledged to reduce the disparity between Indigenous and non-Indigenous people. The National Indigenous Reform Agreement commits COAG to closing the gap between Indigenous and non-Indigenous Australians in life expectancy of ten years within a generation, and halving the gap in the infant mortality rate for Indigenous children.
302. Aboriginal and Torres Strait Islander people with disability are significantly over-represented in the criminal and juvenile justice systems, and in the care and protection system, both as parents and children. There have been instances of Aboriginal people with intellectual disability, cognitive impairment or psychosocial disability who have been detained in prisons or psychiatric facilities without being convicted of a crime because they were found to be ‘unfit to plead’.
People from CALD backgrounds
303. People with disability from CALD backgrounds and their carers may face some distinct difficulties, including in relation to:
myths, stereotypes and stigma as well as cultural concepts of disability;
the role of family;
language and accessibility barriers;
access to income support payments; and
lack of willingness to engage with complaint mechanisms, for example under the DDA, or broader court or dispute resolution processes.
304. Difficulty accessing interpreters, or information in community languages, appears to be a significant issue for CALD people with disability in their engagement with service providers and government agencies as well as courts and tribunals. Further, as the roll-out of the NDIS continues, there is some concern about the impact of the reduction in state and territory based services and funding for interpreter services.
305. In addition to issues arising in relation to laws and legal frameworks, there are a range of service delivery issues, including the lack of culturally appropriate services and lack of knowledge of, or willingness to access, services that do exist. There is also a lack of research or data with respect to CALD people with disability in Australia.
306. As Australia’s population ages, a number of issues are likely to emerge in relation to disability and ageing. The first issue arises due to increased numbers of older people with disability, given that the prevalence of disability increases with age. For example, in 2011 the Australian Institute of Health and Welfare indicated that
After around 50 years of age the prevalence of disability rose considerably, from 20% in the 50–54 years age group to more than 80% among people aged 85 years or over. Rates of severe or profound core activity limitations were even more strongly associated with ageing. This degree of disability was reported for fewer than one in 20 Australians up to the age of 55 years (excluding the peak in boys aged 10–14 years), but almost one-third of people aged 75 years or over.
307. The second key issue is the ageing of people with disability. The number of older people with disability as a proportion of the total number of people with disability is likely to increase with population ageing:
In addition to an increase in disability overall, population ageing changes the composition of the population with disability. In 1981, 10% of all Australians with disability were aged under 15 years and 31% were 65 years or older; in 2009, 7% of the population with disability were aged 0–14 years and 39% were 65 years or over. If this continues, the mix of services and support required by older people with disability will need to increase, relative to those required by younger people.
308. These increases in turn raise concerns about the capacity of disability services, health and social security systems to respond to increased demand. In addition, the increase in older people with disability, including the onset of dementia and related conditions, will mean defining and assessing capacity, as well as consistency across jurisdictions, is likely to become increasingly important.
309. Another key issue is the role of older people providing care to people with disability. According to ABS statistics, older people provide the majority of informal care for persons with disability and people aged 60 years and older. As a result, in considering how the role of family, carers and other supports should be recognised in law, the age profile of such carers needs to be considered.
310. Lesbian, gay, bisexual, transgender and intersex (LGBTI) people with disability often face intersectional discrimination and may have to disclose both their sexual orientation, gender identity or intersex status as well as their disability, resulting in what has been referred to as a ‘second coming out’. Broadly, the social exclusion and isolation as well as mental health issues which are experienced by many LGBTI people may be exacerbated for those who also have disability, and access to services which cater for the needs of LGBTI people with disability can be difficult.
311. However, the particular issues of relevance to this Inquiry appear to arise in relation to medical services and treatment as well as family, sexuality and intimate relationships.
312. In the context of health and medical treatment, key issues arise in relation to: recognition and involvement of same-sex partners for the purposes of consent and medical decision making; HIV/AIDS; and involuntary medical interventions involving intersex people which may affect their long-term health and wellbeing, such as sterilisation.
313. Another issue many LGBTI people with disability face is discrimination and prejudice around their right to engage in intimate relationships. This issue is exacerbated in institutional settings where carers and support staff may not be appropriately trained or aware of issues arising for LGBTI people.
314. Finally, the operation of religious exemptions under anti-discrimination legislation has been highlighted by members of the LGBTI community as being particularly problematic where disability, health, aged care and other services are provided by religious organisations.
People in rural, remote and regional areas
315. Two key factors are vital in considering the needs, experiences and perspectives of people with disability who live in rural, remote and regional areas. First, disability tends to be more common in rural and remote areas than in urban areas. Secondly, in terms of age profile, the population outside of capital cities is older than in other areas, and this age profile is projected to continue.
316. Despite this, people with disability living outside major cities are significantly less likely to access disability support services than those living within major cities. Remoteness may in some instances exacerbate disadvantage for a person with disability living in a rural, remote or regional area. Some of the particular issues facing people with disability in rural, remote and regional areas include: the need for flexibility in rules and provision of support; transport issues; collaboration between services; and the capacity of the disability workforce in such areas. Further, where access to services is provided electronically to overcome accessibility issues, this in turn may create new accessibility issues for people with disability using electronic networks and systems.
Question 41. How do Commonwealth laws and legal frameworks relating to equal recognition before the law and capacity affect people with disability who are:
(c) Aboriginal and Torres Strait Islander;
(d) from culturally and linguistically diverse backgrounds;
(f) lesbian, gay, bisexual, transgender or intersex; or
(g) living in rural, remote and regional areas?
Australian Bureau of Statistics, Children with a Disability, Australian Social Trends, March Quarter 2012, Cat No 4102.0 (2012).
UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).
Council of Australian Governments, Protecting Children Is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020.
Committee on the Rights of Persons with Disability, above n 15, para 18.
The role of family, carers and other supporters is discussed above at paragraphs 108 to 111.
Schetzer and Henderson, above n 222.
Due to the lack of viable alternatives for the high care needs of young people with disability, some 7,500 of them live in aged care facilities.
Devon Indig et al, ‘2009 NSW Young People in Custody Health Survey: Full Report’ (NSW Justice Health and Juvenile Justice, 2011); Dianna T Kenny and Paul K Nelson, ‘Young Offenders on Community Orders: Health, Welfare and Criminogenic Needs’ (Sydney University Press, 2008).
Australian Bureau of Statistics, Disability, Australia, 2009, Cat No 4446.0 (2011).
The ‘triple disadvantage’ faced by women is mentioned in Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 45.
Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) art 15.
UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) art 6.
Ibid preamble (q).
‘A Question of Justice: Access to Participation for People with Disabilities in Contact with the Justice System’, above n 218.
‘National Plan to Reduce Violence against Women and Their Children 2010-2022’ (Council of Australian Governments, February 2011).
Arthur O’Reilly, The Right to Decent Work of Persons with Disabilities (International Labour Organization, 2007) 47–50.
Sage, Encyclopedia of Disability (2006), Vol 2, ‘Gender, International’ as at 11 November 2013, 764.
Australian Institute of Health and Welfare, Introduction to Disability and Disability Services in Australia (12 November 2013) <http://www.aihw.gov.au/introduction-to-disability-and-disability-services-in-australia/>.
Australian Bureau of Statistics, Profiles of Disability 2009, Cat No 4429.0 (2012); Australian Bureau of Statistics, Profiles of Disability, Australia 2009: Comparison of Disability Prevalence between Aboriginal and Torres Strait Islander Peoples and Non-Indigenous Peoples, Cat No 4429.0 (2013); Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings 2009, Cat No 4430.0 (2010).
Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012; Productivity Commission, ‘Disability Care and Support’, above n 29.
Productivity Commission, ‘Disability Care and Support’, above n 29, ch 11.
Productivity Commission, ‘Disability Care and Support’, above n 29.
NSW Ombudsman, Improving Service Delivery to Aboriginal People with a Disability: A Review of the Implementation of ADHC’s Aboriginal Policy Framework and Aboriginal Consultation Strategy, Special Report to Parliament, September 2010.
Productivity Commission, ‘Disability Care and Support’, above n 29.
Cock, above n 221.
There is a ten year waiting period for DSP for migrants.
For an overview of issues, see, eg, Federation of Ethnic Communities’ Councils of Australia, Policy on People with Disability from Multicultural Community Backgrounds, February 2011; National Ethnic Disability Alliance, Submission to the Productivity Commission Inquiry into Long Term Disability Care and Support, August 2010.
Australian Institute of Health and Welfare, Australia’s Welfare 2011, Cat No AUS 412 (2011) 11.
In 2009, 62% of total carers were mature age. Mature age persons also comprised 70% of primary carers for people with disability or aged 60 years or over: Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings 2009, Cat No 4430.0 (2010) 10.
NSW Gay and Lesbian Rights Lobby and City of Sydney, Uncloseting Discrimination: Consultation Report on the Intersections of Discrimination, March 2012, 41.
See, eg, NSW Gay and Lesbian Rights Lobby and City of Sydney, Uncloseting Discrimination: Consultation Report on the Intersections of Discrimination, March 2012, National LGBTI Health Alliance, The Mental Health of Sexuality, Sex and Gender Diverse Australians, Briefing Paper, December 2009.
See, eg, National LGBTI Health Alliance, Submission to the Senate Standing Committee for Community Affairs, Inquiry Into the Involuntary and Coerced Sterilisation of People with Disabilities in Australia, (2012).
‘National Disability Agreement’, above n 33, 32.
Australian Bureau of Statistics, Disability and Work, Australian Social Trends, March Quarter 2012, Cat No 4102.0 (2012).
Australian Institute of Health and Welfare, Rural, Regional and Remote Health: Indicators of Health System Performance Rural Health Series 10 (September 2008) 3.5.7.
See, eg, ‘Delivering Equitable Services to People Living with a Disability in Rural and Remote Areas: FAHCSIA Practical Design Fund (NDIS) Project 2013’ (National Rural Health Alliance, June 2013).