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.[382] Of this number, over half have a profound or severe disability[383] and about one fifth have a moderate or mild disability.[384]
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.[385] 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[386] and has identified disability as a risk factor for abuse and neglect.[387] 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.[388]
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,[389] the removal of children from parents with intellectual disability,[390] their living arrangements, including problems stemming from young people with disability being cared for in aged care facilities[391] and the over-representation of children and young people with disability in the juvenile justice system.[392]
294. There are about two million women with disability in Australia.[393] Almost 700,000 women and girls with a disability live in rural and remote Australia.[394] Women with disability face multiple challenges as they may be discriminated against both on the basis of gender and the basis of their disability.[395] 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.[396] 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.[397]
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.[398] 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.[399] 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.[400]
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.[401] They are also more likely to be sole parents or in their parental family than men with disability.[402]
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.[403] 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%).[404]
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.[405] 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.[406] 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.[407] Further, often the impact of past removal from family and community deters Aboriginal and Torres Strait Islander people from seeking government assistance.[408]
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.[409]
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.[410] 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’.[411]
303. People with disability from CALD backgrounds and their carers may face some distinct difficulties, including in relation to:
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.[414]
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.[415]
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.[416] 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’.[417] 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.[418]
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.[419]
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.
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.[420] 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.[421]
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.[422] 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.[423] 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:
(a) children;
(b) women;
(c) Aboriginal and Torres Strait Islander;
(d) from culturally and linguistically diverse backgrounds;
(e) older;
(f) lesbian, gay, bisexual, transgender or intersex; or
(g) living in rural, remote and regional areas?
[1] The full Terms of Reference are available on the ALRC website.
[2] UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).
[3] Department of Social Services, National Disability Strategy 2010–2020 Fact Sheet (12 November 2013) <http://www.dss.gov.au/>.
[4] Department of Families, Housing, Community Services and Indigenous Affairs, One Big Difference to Lots of Lives: An Introduction to DisabilityCare Australia (2013) 3.
[5] In this Issues Paper, the terms ‘people with disability’ and ‘persons with disabilities’ are used to reflect the Terms of Reference and the language of the CRPD.
[6] The ALRC has a number of functions in carrying out an Inquiry, including to consider proposals for: making or consolidating Commonwealth laws; uniformity between state and territory laws; and complementary Commonwealth, state and territory laws: Australian Law Reform Commission Act 1996 (Cth) s 21(1)(b)–(e).
[7] Prior to CRPD there were a number of non-binding standards specifically related to disability. See, eg: Declaration on the Rights of Mentally Retarded Persons, GA Res 2856, UN GAOR, 3rd Comm, 26th Sess, UN Doc A/RES/2856 (20 December 1971); Declaration on the Rights of Disabled Persons, GA Res 3447, UN GAOR, 3rd Comm, 30th Sess, UN Doc A/RES/3447 (9 December 1975); Standard Rules on the Equalization of Opportunities for Persons with Disabilities, GA Res 48, UN GAOR, 3rd Comm, 48th Sess, Agenda Item 109, UN Doc A/RES/48/96 (20 December 1993).
[8] The Optional Protocol to the CRPD allows for the making of individual complaints to the Committee about violations of the CRPD by States Parties.
[9] 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 1.
[10] UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) arts 3, 4.
[11] Ibid art 12.
[12] Ibid art 12(4).
[13] Convention on the Rights of Persons with Disabilities: Declarations and Reservations (Australia), opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).
[14] Office of the High Commissioner for Human Rights, 10th Session of the Committee on the Rights of Persons with Disabilities (12 November 2013) <http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session10Old.aspx>.
[15] Committee on the Rights of Persons with Disability, ‘Concluding Observations on the Initial Report of Australia, Adopted by the Committee at Its Tenth Session (2–13 September 2013)’ (United Nations, 4 October 2013) 9.
[16] Ibid.
[17] Such international instruments do not become part of Australian law until incorporated into domestic law by statute. See, eg, Kioa v West (1985) 159 CLR 550.
[18] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948).
[19] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS171 (entered into force 23 March 1976).
[20] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
[21] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
[22] Manfred Nowak, Special Rapporteur, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 63rd Sess, UN Doc A/63/175 (28 July 2008) 9.
[23] 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).
[24] Convention on the Rights of the Child, opened for signature 20 November 1987, 1577 UNTS 3 (entered into force 2 September 1990).
[25] Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st Sess, 107th Plen Mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007).
[27] Horta v Commonwealth (1994) 181 CLR 183.
[28] Commonwealth v Tasmania (1983) 158 CLR 1; Horta v Commonwealth (1994) 181 CLR 183; Polyukhovich v Commonwealth (1991) 172 CLR 501.
[29] Productivity Commission, ‘Disability Care and Support’ (July 2011) 54 Vol 1; Productivity Commission, ‘Disability Care and Support’ (July 2011) 54 Vol 2.
[30] Productivity Commission, ‘Disability Care and Support’, above n 29, Overview, 2.
[31] National People with Disabilities and Carers Council, Shut Out: The Experience of People with Disabilities and Their Families in Australia (2009).
[32] Australian Government, National Disability Strategy 2010–2020, 9.
[33] ‘National Disability Agreement’ (Council of Australian Governments, 2012) 9, cl 15–16.
[34] Ibid cl 19. Under the NDA, the Council of Australian Governments Reform Council is required to report annually in relation to the outcomes specified in the NDA against a number of performance indicators and benchmarks. See, ‘Disability 2011-12: Comparing Performance Across Australia’ (Report to the Council of Australian Governments, COAG Reform Council, 30 April 2013).
[35] Disability Discrimination Act 1992 (Cth) s 3.
[36] Australian Government Attorney-General’s Department, ‘Australia’s Human Rights Framework’ (2010).
[37] The Hon Mark Dreyfus QC MP (Attorney-General) and 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).
[38] The project of the National Mental Health Commission is being conducted in partnership with the Mental Health Commission of Canada and Australian partners, including the Safety and Quality Partnerships Subcommittee, Disability Discrimination Commissioner of the Australian Human Rights Commission and state mental health commissions. As part of the project, researchers from the University of Melbourne will undertake research into the extent of seclusion and restraint in Australia and comparable countries and provide examples of the reduction and elimination of these practices: National Mental Health Commission, National Seclusion and Restraint Project (12 November 2013) <http://www.mentalhealthcommission.gov.au/our-work/national-seclusion-and-restraint-project.aspx>.
[39] The Hon Peter Dutton MP (Minister for Health and Minister for Sport) ‘Abbott Government Commitment to Mental Health’ (Media Release, 10 October 2013).
[40] Ibid.
[41] Piers Gooding, ‘Supported Decision-Making: A Rights-Based Disability Concept and Its Implications for Mental Health Law’ (2013) 20 Psychiatry, Psychology and Law 431, n 3.
[42] UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) Preamble.
[43] Other definitions may be found in, eg, Australian Bureau of Statistics, Disability, Australia, 2009, Cat No 4446.0 (2011); Disability Discrimination Act 1992 (Cth) s 4(1).
[44] Terry Carney, ‘Guardianship, “Social” Citizenship and Theorising Substitute Decision-Making Law’ in Israel Doron and Ann M Soden (eds), Beyond Elder Law (Springer, 2012) 3.
[45] The UNCRPD is the treaty-monitoring body for the CRPD which monitors the Convention, primarily through the state party reporting process.
[46] United Nations Committee on the Rights of Persons with Disabilities, Draft General Comment on Article 12 of the CRPD: Equal Recognition Before the Law [1].
[47] Ibid.
[48] The term ‘States Parties’ is used in this Issues Paper to ensure consistency with the terminology in the CRPD.
[49] For example, the early laws of marriage in the common law treated the husband and wife as one: the wife’s legal personality merged with that of her husband. When the Statute of Wills 1540 granted the power to devise real estate, an explanatory statute was passed in 1542 to clarify that this power did not extend to married women; nor to infants and ‘lunatics’.
[50] McSherry, Bernadette, ‘Legal Capacity under the Convention on the Rights of Persons with Disabilities’ (2012) 20 Journal of Law and Medicine 22, 23.
[51] United Nations Committee on the Rights of Persons with Disabilities, Draft General Comment on Article 12 of the CRPD: Equal Recognition Before the Law [5].
[52] The right to recognition as a legal agent is also reflected in Article 12(5) CRPD, which outlines the duty of States Parties to ‘take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit and shall ensure that persons with disabilities are not arbitrarily deprived of their property: Ibid [11]. See also McSherry, Bernadette, ‘Legal Capacity Under the Convention on the Rights of Persons with Disabilities’ (2012) 22 Legal Issues 23.
[53] Contracts: Blomley v Ryan (1954) 99 CLR 362. Wills: Banks v Goodfellow (1870) LR 5 QB 549. See also: Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) ch 7.
[54] See, eg, J D Heydon and M J Leeming, Cases and Materials on Equity and Trusts (LexisNexis Butterworths, 8th ed, 2011) ch 14.
[55] For example, in the context of wills, a person is presumed to have the legal capacity to make a will and it is for those who challenge a testator’s capacity to bring evidence of incapacity: Bull v Fulton (1942) 66 CLR 295. The presumption of capacity arises if the will is rational on its face and is duly executed. See, eg, GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, 2013) ch 2. This was expressed in the legal maxim ‘omnia praesumuntur rite et somemniter esse acta’: all acts are presumed to have been done rightly and regularly.
[56] Guardianship and Administration Act 2000 (Qld) sch 1 cl 1, (WA) s 4(3).
[57] See also Mental Capacity Act 2005 (UK) addresses this explicitly by providing that individuals are assumed to have capacity to make decisions unless otherwise established: Mental Capacity Act 2005 (UK) s 1.
[58] See, eg, the distinction between medical and legal perspectives in Terry Carney, above n 44.
[59] United Nations Committee on the Rights of Persons with Disabilities, Draft General Comment on Article 12 of the CRPD: Equal Recognition Before the Law.
[60] Ibid [15].
[61] Ibid [25].
[62] McSherry, Bernadette, ‘Legal Capacity Under the Convention on the Rights of Persons with Disabilities’, above n 52, 26.
[63] United Nations Committee on the Rights of Persons with Disabilities, Draft General Comment on Article 12 of the CRPD: Equal Recognition Before the Law [23].
[64] Ibid [24]. Emphasis added.
[65] Ibid [15].
[66] Ibid [3].
[67] Australia, Interpretative Declaration: Article 12 UN Convention on the Rights of Persons with Disabilities, 17 July 2008. Canada made a similar declaration.
[68] Committee on the Rights of Persons with Disability, above n 15, [24].
[69] McSherry, Bernadette, ‘Legal Capacity Under the Convention on the Rights of Persons with Disabilities’, above n 52, 26.
[70] Lee Ann Basser, ‘Human Dignity’ in Marcia Rioux, Lee Ann Basser and Melinda Jones (eds), Critical Perspectives on Human Rights and Disability Law (Martinus Nijhoff, 2010) 21.
[71] 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 3(a).
[72] See, eg, Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
[73] Australian Government, National Disability Strategy 2010–2020, 22.
[74] Productivity Commission, ‘Review of the Disability Discrimination Act 1992 (Cth)’ (30 Vol 1, 2004) 182.
[75] United Nations Committee on the Rights of Persons with Disabilities, Draft General Comment on Article 12 of the CRPD: Equal Recognition Before the Law [1].
[76] UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).
[77] Australian Government, National Disability Strategy 2010–2020, 22.
[78] Human Rights Act 2004 (ACT) s 8; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8.
[79] UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).
[80] Australian Government, National Disability Strategy 2010–2020, 22.
[81] National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4.
[82] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS171 (entered into force 23 March 1976) art 23(1); Standard Rules on the Equalization of Opportunities for Persons with Disabilities, GA Res 48, UN GAOR, 3rd Comm, 48th Sess, Agenda Item 109, UN Doc A/RES/48/96 (20 December 1993) rule 9.
[83] Gooding, above n 41, 435.
[84] Productivity Commission, ‘Disability Care and Support’, above n 29, 98.
[85] Ibid.
[86] Ibid 203.
[87] 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 3(c).
[88] Australian Government Department of the Prime Minister and Cabinet, Social Inclusion Policy (2010).
[89] Australian Government, National Disability Strategy 2010–2020, 16.
[90] National Disability Insurance Scheme Act 2013 (Cth) s 3.
[91] Australian Government, National Disability Strategy 2010–2020, 16.
[92] Melinda Jones, ‘Inclusion, Social Inclusion and Participation’ in Lee Ann Basser, Marcia Rioux and Melinda Jones (eds), Critical Perspectives on Human Rights and Disability Law (Martinus Nijhoff, 2012) 57.
[93] Australian Government, National Disability Strategy 2010–2020, 15.
[94] Ibid 14.
[95] Ibid.
[96] Discussed below at paragraph 113.
[97] See, eg, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) 98–99.
[98] 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 12(2).
[99] For example, for testamentary capacity in the context of wills.
[100] For example, voting or marriage.
[101] Guardianship and Administration Act 1986 (Vic).
[102] Guardianship Act 1987 (NSW).
[103] This is conceptually similar to a medical model of disability, as distinct from the social model of disability.
[104] United Nations Committee on the Rights of Persons with Disabilities, Draft General Comment on Article 12 of the CRPD: Equal Recognition Before the Law [5].
[105] McSherry, Bernadette, ‘Legal Capacity Under the Convention on the Rights of Persons with Disabilities’, above n 52, 24.
[106] Ibid.
[107] United Nations Committee on the Rights of Persons with Disabilities, Draft General Comment on Article 12 of the CRPD: Equal Recognition Before the Law [5].
[108] New South Wales, Attorney General’s Department, Capacity Toolkit: Information for Government and Community Workers, Professionals, Families and Carers in New South Wales (2008) 27.
[109] Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 27.
[110] Australian Law Reform Commission Act 1996 (Cth) s 21(1)(b)–(e).
[111] See discussion of Constitutional issues at paragraphs 29 and 30.
[112] Australian Government, National Disability Strategy 2010–2020, 47.
[113] The Framework was developed in response to ‘Who Cares…? Report on the Inquiry into Better Support for Carers’ (Standing Committee on Family, Community, Housing and Youth, 2009).
[114] There is also carer recognition legislation in place in some states and territories.
[115] Carer Recognition Act 2010 (Cth). See also: Department of Social Services, Carer Recognition Act 2010 Guidelines.
[116] Australian Government, National Carer Strategy (2011).
[117] Ibid.
[118] See, eg, National People with Disabilities and Carers Council, Shut Out: The Experience of People with Disabilities and Their Families in Australia (2009); Australian Government, National Carer Strategy (2011).
[119] 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 12(4).
[120] Disability Discrimination Act 1992 (Cth). See also: Equal Opportunity Act 2010 (Vic); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act (NT); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1984 (WA).
[121] In addition, the Regulations list additional grounds which will constitute discrimination under the AHRC Act, including mental, intellectual or psychiatric, or physical disability: Australian Human Rights Commission Regulations 1989 (Cth) reg 4.
[122] Intersectional discrimination refers to circumstances where an individual is discriminated against on the basis of more than one (or a combination of) grounds/protected attributes. For example, a woman with disability may experience discrimination because of both her sex and disability.
[123] There are a number of exceptions to the DDA including in relation to special measures, superannuation and insurance, acts done under statutory authority, infectious diseases, pensions and allowances and migration: Disability Discrimination Act 1992 (Cth) ss 45–58. The insurance and superannuation exceptions are discussed in more detail later in this Issues Paper.
[124] See, eg, Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 40.
[125] Committee on the Rights of Persons with Disability, above n 15 [14].
[126] Ibid [15].
[127] Disability Discrimination Act 1992 (Cth) ss 5, 6. Note the term ‘reasonable accommodation’ is used in the CRPD: UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) arts 2, 5(3).
[128] Disability Discrimination Act 1992 (Cth) s 11.
[129] Fair Work Act 2009 (Cth) ch 3, pt 3–1.
[130] A ‘workplace right’ exists where a person: is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument (such as an award or agreement) or an order made by an industrial body; is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or has the capacity under a workplace law to make a complaint or inquiry to a person or body to seek compliance with that workplace law or instrument, or in the case of an employee, in relation to their employment: Ibid s 341.
[131] Ibid s 342(1).
[132] Ibid s 351(1). Similarly, s 772(1)(f), which extends coverage to non-national system employees, prohibits termination of an employee’s employment on the basis of the same discriminatory grounds. However, s 772(1)(f) is more limited than s 351(1) as it only applies to termination of employment, rather than ‘adverse action’ more generally.
[133] Ibid ss 351(1), 772(1)(f).
[134] C Andreas, Intersections Between ‘General Protections’ under the Fair Work Act 2009 (Cth) and Anti-Discrimination Law: Questions, Quirks and Quandaries, Working Paper No 47 (2009), Centre for Employment Law and Labour Relations 11.
[135] Social Security (Administration) Act 1999 (Cth).
[136] Income Tax Assessment Act 1997 (Cth); Income Tax Assessment Regulations 1997 (Cth).
[137] Administrative Review Council, Australian Administrative Law Policy Guide 2011 [1.2].
[138] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 28.
[139] Administrative Appeals Tribunal Act 1975 (Cth). Other federal tribunals are: the Social Security Appeals Tribunal, the Migration Review Tribunal, the Refugee Review Tribunal and the Veterans’ Review Board.
[140] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 25.
[141] By the High Court of Australia under the Commonwealth of Australia Constitution Act (Cth) s 75(v); the Federal Court of Australia under Judiciary Act 1903 (Cth) s 39B.
[142] Ombudsman Act 1976 (Cth) s 5.
[143] National Disability Insurance Scheme Act 2013 (Cth) s 103. The new members of the AAT are Professor Ronald McCallum AO in NSW, Lynne Coulson Barr in Victoria, Sandra Taglieri in Tasmania, and Ian Thompson in South Australia.
[144] National Disability Insurance Agency Australia, About the Administrative Appeals Tribunal (11 November 2013) <http://www.ndis.gov.au/>.
[145] Administrative Appeals Tribunal Australia, Video about the AAT Review Process–Information for DisabilityCare Australia Applicants (11 November 2013) <http://www.aat.gov.au/>.
[146] Administrative Appeals Tribunal, Review of DisabilityCare Australia Decisions, Practice Direction (1 July 2013).
[147] Christine Coumarelos et al, ‘Legal Australia-Wide Survey Legal Need in Australia’ (Law and Justice Foundation of NSW, 2012), xiv.
[148] Ibid 19.
[149] Faulty hearing aids, electric beds and wheelchairs which are not replaced or fixed promptly are likely to result in, respectively, sustained loss of hearing, discomfort or loss of mobility and even injury.
[150] The Telecommunications Industry Ombudsman provides free dispute resolution services under the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth).
[151] Competition and Consumer Act 2010 (Cth) s 2.
[152] European Commission, Benefits of Competition Policy (11 November 2013) <http://ec.europa.eu/>.
[153] Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38; (2000) ATPR 41-752, French J.
[154] Competition and Consumer Act 2010 (Cth) ss 44ZZRS, 44ZZX, 45, 45B, 45C, 46, 49, 50.
[155] Australian Competition and Consumer Commission, Cartels (5 August 2013) <http://www.accc.gov.au/>.
[156] The Australian Consumer Law (ACL) commenced on 1 January 2011. The ACL applies nationally and in all states and territories, and to all Australian businesses. For transactions that occurred prior to 1 January 2011, the previous national, state and territory consumer laws continue to apply. See, Council of Australian Governments, The Intergovernmental Agreement for the Australian Consumer Law 2 July 2009.
[157] Competition and Consumer Act 2010 (Cth), sch 2.
[158] National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth); National Consumer Credit Protection (Fees) Act 2009 (Cth); National Consumer Credit Protection Regulations 2010 (Cth); National Consumer Credit Protection (Fees) Regulations 2010 (Cth).
[159] Australian Securities and Investments Commission, Credit Licensing: Responsible Lending Conduct, Regulatory Guide 209, September 2013.
[160] Ibid.
[161] Other privacy-related legislation includes: Telecommunications Act 1997 (Cth); Telecommunications (Interception and Access) Act 1979 (Cth); National Health Act 1953 (Cth); Data-matching Program (Assistance and Tax) Act 1990 (Cth); Crimes Act 1914 (Cth); Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth); Personally Controlled Electronic Health Records Act 2012 (Cth); Personal Property Securities Act 2009 (Cth).
[162] Privacy Act 1988 (Cth) sch 3. Australian Government agencies and large private sector organisations as well as certain small businesses–like those that provide health services–are also required to abide by the National Privacy Principles (NPPs). From 12 March 2014, 13 Australian Privacy Principles will replace the NPPs.
[163] The OAIC is an independent government agency that oversees privacy, freedom of information and government information policy: Australian Information Commissioner Act 2010 (Cth).
[164] Office of the Australian Information Commissioner, What We Do (11 November 2013) <http://www.oaic.gov.au/>.
[165] The OAIC and the ACT Human Rights Commission regulate privacy in the ACT; in NSW, the Information and Privacy Commission oversees the Privacy and Personal Information Protection Act 1998 (NSW) and Health Records and Information Privacy Act 2002 (NSW); the Office of the Information Commissioner undertakes freedom of information and privacy functions under the Information Act 2002 (NT) in the Northern Territory; in Queensland, the Office of the Information Commissioner protects personal information held by the public sector under the Information Privacy Act 2009 (Qld); the Information Privacy Principles Instruction which applies to government agencies is overseen by the Privacy Committee of South Australia; the Tasmanian Ombudsman investigates complaints against public and local government sectors under the Personal Information and Protection Act 2004 (Tas); and in Western Australia, there is no legislative privacy regime except for confidentiality provisions covering government agencies and some privacy principles in the Freedom of Information Act 1992 (WA).
[166] Privacy Act 1988 (Cth) s 6(1).
[167] Healthcare Identifiers Act 2010 (Cth).
[168] Personally Controlled Electronic Health Records Act 2012 (Cth).
[169] Office for the Australian Information Commissioner, EHealth Record System, OAIC Enforcement Guidelines Consultation Paper, August 2012.
[170] Department of Health, EHealth–General Consumer FAQs (11 November 2013) <http://www.ehealth.gov.au/>.
[171] Office for the Australian Information Commissioner, EHealth Record System, OAIC Enforcement Guidelines Consultation Paper, August 2012.
[172] Department of Health, above n 170.
[173] Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 149.
[174] Personally Controlled Electronic Health Records Act Personally Controlled Electronic Health Records Act 2012 (Cth); Personally Controlled Electronic Health Records Regulation 2012 (Cth).
[175] Office for the Australian Information Commissioner, EHealth Record System, OAIC Enforcement Guidelines Consultation Paper, August 2012.
[176] Ibid.
[177] The Hon Peter Dutton MP (Minister for Health and Minister for Sport) ‘Federal Government to Review Electronic Health Records’ (Media Release, 3 November 2013).
[178] See, eg, National Disability Insurance Scheme (Children) Rules 2013 (Cth); National Disability Insurance Scheme (Nominee) Rules 2013 (Cth); National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth); National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013 (Cth); National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013 (Cth); National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth).
[179] National Disability Insurance Agency, Nominees-Overview, Operational Guideline (2013); National Disability Insurance Agency, Nominees-Whether a Nominee Is Necessary, Operational Guideline (2013); National Disability Insurance Agency, General Conduct-Supporting Participant’s Decision-Making, Operational Guideline (2013).
[180] See, eg, National Disability Insurance Scheme Act 2013 (Cth) ss 4–6, 17A.
[181] Individual packages may be self-managed, managed using a Plan Management Provider, or managed by the National Disability Insurance Agency.
[182] National Disability Insurance Scheme Act 2013 (Cth) s 79.
[183] A number of other rules are also relevant, including for example, National Disability Insurance Scheme (Children) Rules 2013 (Cth).
[184] See, eg, Ibid.
[185] National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) r 3.4, pt 3.14.
[186] See, eg, National Disability Insurance Scheme Act 2013 (Cth) s 76.
[187] Ibid s 74(1).
[188] National Disability Insurance Scheme (Children) Rules 2013 (Cth) r 3.4.
[189] Ibid r 6.4.
[190] National Disability Insurance Agency, Nominees–Overview, Operational Guideline (2013). See also: National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) pt 3.14. Note, DisabilityCare Australia is now known as the National Disability Insurance Scheme Agency.
[191] 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 27.
[192] See, eg, 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.
[193] See also, Committee on the Rights of Persons with Disability, above n 15, [49], [50].
[194] 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 29. See also right to vote under International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS171 (entered into force 23 March 1976) art 25; Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948) art 21.
[195] Commonwealth Electoral Act 1918 (Cth) s 93(8). There are similar provisions in state and territory electoral legislation. See also Roach v Electoral Commissioner [2007] HCA 43.
[196] Commonwealth Electoral Act 1918 (Cth) ss 116(4), 118(4).
[197] Including under the Commonwealth Electoral Act 1918 (Cth), the Disability Discrimination Act 1992 (Cth), the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by the Ombudsman.
[198] Committee on the Rights of Persons with Disability, above n 15, 52.
[199] Commonwealth of Australia Constitution Act (Cth) s 72. In NSW, judicial officers may be removed from office under the Constitution Act 1902 (NSW) and the Judicial Officers Act 1986 (NSW) by a resolution of both Houses of Parliament that a request be made and presented to the Governor requesting the judicial officer’s removal.
[200] New South Wales, Parliamentary Debates, Legislative Council, 13 October 2011, 6149-6177 (David Shoebridge, Peter Phelps, Adam Searle and Matthew Mason-Cox).
[201] 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 29. The jury system is a component of the public administration of justice and an aspect of the conduct of public affairs for the purposes of this article. See also: Ibid arts 12, 13, 21.
[202] A jury list is prepared for particular proceedings and contains the names and addresses of persons that the Sheriff selects from the jury roll for the applicable jury district, see, eg Federal Court of Australia Act 1976 (Cth) s 23DM.
[203] Ibid s 23DO.
[204] Ibid ss 23DQ, 23DR.
[205] Ibid s 23DQ (Note).
[206] Jury Act 1977 (NSW) s 6(b), sch 2. See also: New South Wales Law Reform Commission, Blind or Deaf Jurors, Final Report No 114 (2006).
[207] New South Wales Law Reform Commission, Blind or Deaf Jurors, Final Report No 114 (2006); Alastair McEwin, Individual Communication under the United Nations Convention on the Rights of Persons with Disabilities, Communication to Committee on the Rights of Persons with Disabilities in McEwin v Australia G/SO 214/48 AUS (1) 12/2013.
[208] See, eg, Alastair McEwin, Individual Communication under the United Nations Convention on the Rights of Persons with Disabilities, Communication to Committee on the Rights of Persons with Disabilities in McEwin v Australia G/SO 214/48 AUS (1) 12/2013.
[209] See, eg, New South Wales Law Reform Commission, Blind or Deaf Jurors, Final Report No 114 (2006).
[210] Optional Protocol to United Nations Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, UN Doc A/61/611 (entered into force 3 May 2008). See also Alastair McEwin, Individual Communication under the United Nations Convention on the Rights of Persons with Disabilities, Communication to Committee on the Rights of Persons with Disabilities in McEwin v Australia G/SO 214/48 AUS (1) 12/2013.
[211] See, eg, Corporations Act 2001 (Cth) s 201F.
[212] Associations Incorporation Act 2009 (NSW) Model Constitution cl 18(2)(f).
[213] Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System (September 2009).
[214] UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) arts 12 and 15 are also related to access to justice.
[215] Abigail Gray, Suzie Forell and Sophie Clarke, ‘Cognitive Impairment, Legal Need and Access to Justice’ [2009] Justice Issues 10 Law and Justice Foundation of NSW.
[216] See discussion of relevant standards of capacity at paragraphs 94 to 97.
[217] Jim Simpson and Linda Rogers, ‘Intellectual Disability and Criminal Law’ 19.
[218] See, eg, ‘A Question of Justice: Access to Participation for People with Disabilities in Contact with the Justice System’ (Disability Council of NSW, 2003) 28.
[219] Gray, Forell and Clarke, above n 215.
[220] Two major reports on NSW are: ‘People with an Intellectual Disability and the Criminal Justice System’ (80, NSW Law Reform Commission, 1996); Jim Simpson, Meredith Martin and Jenny Green, ‘The Framework Report: Appropriate Community Services in NSW for Offenders with Intellectual Disabilities and Those at Risk of Offending’ (NSW Council for Intellectual Disability, 2001).
[221] The case of Marlon Noble highlighted the issue of people with intellectually disability who are deemed ‘unfit to plead’ being subject to indefinite custody orders. The facts of the case are outlined in legal advice provided by the Special Counsel to the WA Premier, Robert Cock, ‘Report to the Minister for Corrective Services on Mr Marlon Noble’ (WA Parliament, 7 June 2011).
[222] Louis Schetzer and Judith Henderson, ‘A Project to Identify Legal Needs, Pathways and Barriers for Disadvantaged People in NSW–Stage 1: Public Consultations’ (Law and Justice Foundation of NSW, August 2003) 218–219.
[223] Submission from the NSW Council of Intellectual Disability: Ibid.
[224] Evidence Act 1995 (Cth) s 13.
[225] Ibid.
[226] Ibid.
[227] ‘People with an Intellectual Disability and the Criminal Justice System’, above n 220, ch 7.
[228] Evidence Act 1995 (Cth) s 135.
[229] Ibid s 14.
[230] Ibid s 30.
[231] Ibid s 31.
[232] Ibid s 31(4).
[233] Criminal Code Act 1995 (Cth) ss 105.5A, 105.31.
[234] Crimes Act 1914 (Cth) Pt IAD Protecting vulnerable persons; ss 23H, 23WG, 23XR relate to Aboriginal and Torres Strait Islander people.
[235] Ibid ss 15YI, 15YL.
[236] Ibid s 15YO.
[237] Ibid ss 15YA, 15YAB(1), 15YAA.
[238] Ibid s 15YP.
[239] Ibid s 15YE.
[240] Ibid s 15YNC.
[241] Ibid s 15YQ.
[242] Ibid s 23H.
[243] Ibid s 23WA. An ‘incapable person’ is defined as an adult who (a) is incapable of understanding the general nature and effect of, and purposes of carrying out, a forensic procedure; or (b) is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out.
[244] Ibid s 23WB.
[245] Ibid s 23YE. This includes Auslan and Braille.
[246] Ibid s 15A(5).
[247] Access to justice is discussed above at paragraphs 188 to 193.
[248] Evidence is discussed above at paragraphs 194 to 199.
[249] Criminal Code Act 1995 (Cth) s 7.3.
[250] Ibid.
[251] Crimes Act 1914 (Cth) s 20BY.
[252] Office of the Director of Public Prosecutions, Prosecution Policy of the Commonwealth: Guidelines for the Making of Decisions in the Prosecution Process cl 2.7(f).
[253] Ibid.
[254] Ibid cl 2.8.
[255] Ibid cl 2.10(c).
[256] Ibid cl 2.10(o).
[257] Ibid cl 2.10(j).
[258] Ibid cl 2.10(q).
[259] National People with Disabilities and Carers Council, Shut Out: The Experience of People with Disabilities and Their Families in Australia (2009) 34.
[260] Department of Social Services, Guide to Social Security Law (2013).
[261] Administrative law is discussed above at paragraphs 126 to 131.
[262] Pensions have historically not included a participation requirement and have been provided on the basis that recipients were not expected to undertake paid work. Allowances are generally paid on the basis that recipients are willing and able to work and as a result have included participation requirements. However, the shift towards a social model of disability has seen greater emphasis on the capacity of people with disability to work. In light of low rates of employment participation by people with disability, this question of participation has come under increased scrutiny. For example, in 2009 the Pension Review stated that pensions paid to those below Age Pension age should actively support people to participate in employment; and in 2012 amendments were made to the rules around hours of work for DSP. See, eg, Department of Families, Housing, Community Services and Indigenous Affairs, Pension Review Report (2009).
[263] See, eg, National People with Disabilities and Carers Council, Shut Out: The Experience of People with Disabilities and Their Families in Australia (2009).
[264] A ‘principal’ for the purposes of the nominee provisions is a social security payment recipient who has had a nominee appointed to receive either correspondence and/or payments on their behalf: Social Security (Administration) Act 1999 (Cth) s 123A.
[265] Ibid ss 123C, 123H. See also: Department of Social Services, Guide to Social Security Law (2013) [8.5.1], [8.5.2].
[266] Social Security (Administration) Act 1999 (Cth) s 123B. See also: Department of Social Services, Guide to Social Security Law (2013) [8.5.1], [8.5.2].
[267] Social Security (Administration) Act 1999 (Cth) s 123D(1).
[268] Department of Social Services, Guide to Social Security Law (2013) [8.5.1], [8.5.2].
[269] Ibid.
[270] Social Security (Administration) Act 1999 (Cth) s 123O.
[271] Ibid s 123K.
[272] Ibid s 123L. It is a strict liability offence not to comply which attracts a penalty of 60 penalty units. See also Department of Social Services, Guide to Social Security Law (2013) [8.5.3].
[273] Section 123E of the Social Security (Administration) Act 1999 (Cth) outlines the specific power to revoke a nominee appointment, but does not appear to make provision for a request by a principal.
[274] See, eg, Social Security (Administration) Act 1999 (Cth) s 123J.
[275] See Question 14 following paragraph 158.
[276] 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 12.
[277] See, eg, Banking Act 1959 (Cth); Competition and Consumer Act 2010 (Cth) sch 2.
[278] Australian Prudential Regulation Authority Act 1998 (Cth).
[279] Australian Securities and Investments Commission Act 2001 (Cth).
[280] An independent review of the FOS is ongoing at the time of writing and is due to report to the FOS Board in December 2013.
[281] Australian Bankers’ Association Industry Guideline, Protecting Vulnerable Customers from Potential Financial Abuse, June 2013.
[282] Australian Bankers’ Association Industry Guideline, Responding to Requests from a Power of Attorney or Court-Appointed Administrator, June 2013.
[283] See, eg, Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 190.
[284] Australian Bankers’ Association, Financial Abuse Prevention (12 November 2013) <http://www.bankers
.asn.au/Consumers/Financial-abuse-prevention>.
[285] Australian Bankers’ Association Industry Guideline, Protecting Vulnerable Customers from Potential Financial Abuse, June 2013.
[286] Australian Bankers’ Association Industry Guideline, Responding to Requests from a Power of Attorney or Court-Appointed Administrator, June 2013, 2.
[287] Ibid 4.
[288] See, eg, Competition and Consumer Act 2010 (Cth) sch 2, ss 18, 20, 22–24.
[289] The ABA has developed Guiding Principles for Accessible Authentication which aim to ensure that all customers, including people with disability, are able to independently access and manage their finances in the context of changing technology: Australian Bankers’ Association, Guiding Principles for Accessible Authentication (2007).
[290] Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 173.
[291] Disability Discrimination Act 1992 (Cth) s 46.
[292] Superannuation Act 1976 (Cth) s 79B; Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 6.01.
[293] Disability Discrimination Act 1992 (Cth) s 46.
[294] World Health Organization, Disability and Health (12 November 2013) <http://www.who.
int/mediacentre/factsheets/fs352/en/>.
[295] Ibid.
[296] Health Practitioner Regulation National Law Act 2009 (Qld) s 5. The National Law was passed first in Queensland and then adopted in each state and territory.
[297] Council of Australian Governments, National Health Reform Agreement, August 2011. Under the National Health Reform Agreement, the Commonwealth provides funding for eight streams of health. The streams are: public hospitals; primary care; aged care; mental health; standards and performance; workforce; prevention; and e–health.
[298] Australian Commission on Safety and Quality in Health Care, ‘National Safety and Quality Health Service Standards, September 2012’.
[299] The NDIS is discussed above at paragraphs 144 to 148.
[300] Council of Australian Governments, National Health Reform Agreement, August 2011.
[301] COAG, ‘National Health Reform Agreement’.
[302] Australian Commission on Safety and Quality in Health Care, above n 298.
[303] Australian Commission on Safety and Quality in Health Care, above n 298.
[304] The Health Practitioner Regulation National Law 2009 (Qld) was passed first in Queensland and then adopted in each State and Territory.
[305] The functions of the Australian Health Practitioner Regulatory Authority (AHPRA) include the establishment of procedures for the development of accreditation standards, registration standards and codes and guidelines; Health Practitioner Regulation National Law Act 2009 (Qld) s 25.
[306] Ian Kerridge, Michael Lowe and Cameron Stewart, Ethics and Law for the Health Professions (The Federation Press, 4th ed, 2013) 112. The 14 national boards are the: Aboriginal and Torres Strait Islander Health Practice Board of Australia; Chinese Medicine Board of Australia; Chiropractic Board of Australia; Dental Board of Australia; Medical Board of Australia; Medical Radiation Practice Board of Australia; Nursing and Midwifery Board of Australia; Occupational Therapy Board of Australia; Optometry Board of Australia; Osteopathy Board of Australia; Pharmacy Board of Australia; Physiotherapy Board of Australia; Podiatry Board of Australia; and Psychology Board of Australia.
[307] Article 17 of the CRPD states that ‘every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.’
[308] Rogers v Whitaker (1992) 175 CLR 479, 489.
[309] Guardianship and Management of Property Act 1991 (ACT); Guardianship Act 1987 (NSW); Adult Guardianship Act (NT); Guardianship and Administration Act 2000 (Qld); Powers of Attorney Act 1998 (Qld); Guardianship and Administration Act 1993 (SA); Consent to Medical Treatment and Palliative Care Act 1995 (SA); Guardianship and Administration Act 1995 (Tas); Guardianship and Administration Act 1986 (Vic); Guardianship and Administration Act 1990 (WA).
[310] Mental Health (Treatment and Care) Act 1994 (ACT); Mental Health Act 2007 (NSW); Mental Health and Related Services Act (NT); Mental Health Act 2000 (Qld); Mental Health Act 2009 (SA); Mental Health Act 1996 (Tas); Mental Health Act 1996 (WA); Mental Health (Consequential Provisions) Act 1996 (WA).
[311] In the ACT, Victoria and Western Australia. Tasmania has finalised its review and enacted the Mental Health Act 2013 (Tas) which is effective from 1 January 2014.
[312] Senate Standing Committee for Community Affairs, Inquiry into the Involuntary or Coerced Sterilisation of People with Disabilities in Australia (2013) rec 5.
[313] Ibid [1.19].
[314] Ibid.
[315] Senate Standing Committee for Community Affairs, Inquiry into the Involuntary or Coerced Sterilisation of Intersex People in Australia (2013).
[316] 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).
[317] Senate Standing Committee for Community Affairs, Inquiry into the Involuntary or Coerced Sterilisation of Intersex People in Australia (2013) rec 6.
[318] Ibid rec 8.
[319] Therese Sands, People with Disability Australia was interviewed on ABC radio: ABC Radio National, ‘Calls for Tighter Laws Around Disability Sterilisation’ PM (Mark Colvin) 17 July 2013 <http://www.abc.net.au/pm/content/2013/s3805215.htm>.
[320] Senate Standing Committee for Community Affairs, Inquiry into the Involuntary or Coerced Sterilisation of Intersex People in Australia (2013) rec 3.
[321] Ibid recs 5–7.
[322] Australian Government, About the Scheme–Aged Care Complaints Scheme (12 November 2013) <http://agedcarecomplaints.govspace.gov.au>.
[323] Australian Institute of Health and Welfare, Residential Aged Care in Australia 2010–11: A Statistical Overview, Aged Care Statistics Series No 36 Cat No AGE 68 (2012); Australian Institute of Health and Welfare, Aged Care Packages in the Community 2010–11: A Statistical Overview, Aged Care Statistics No 37 Cat No AGE 68 (2012).
[324] Australian Institute of Health and Welfare, Residential Aged Care in Australia 2010–11: A Statistical Overview, Aged Care Statistics Series No 36 Cat No AGE 68 (2012); Australian Institute of Health and Welfare, Aged Care Packages in the Community 2010–11: A Statistical Overview, Aged Care Statistics No 37 Cat No AGE 68 (2012).
[325] Aged Care Overview–Aged Care Standards and Accreditation Agency (12 November 2013) <http://www.accreditation.org.au/>.
[326] Over half of permanent residents in Australian Government-funded aged care facilities had a diagnosis of dementia in 2011–2012: Australian Institute of Health and Welfare, Residential Aged Care in Australia 2010–11: A Statistical Overview, Aged Care Statistics Series No 36 Cat No AGE 68 (2012). Studies suggest the prevalence of dementia is greater for Indigenous people than the non-Indigenous population: K Smith and Flicker, ‘High Prevalence of Dementia and Cognitive Impairment in Indigenous Australians’ 71 Neurology 1470; S Henderson and GA Broe, ‘Dementia in Aboriginal Australians’ 44 Australian and New Zealand Journal of Psychiatry 869.
[327] Kerridge, Lowe and Stewart, above n 306, 659.
[328] Aged Care Overview–Aged Care Standards and Accreditation Agency, above n 325.
[329] Ibid.
[330] The NDIS is discussed above at paragraphs 144 to 148. Health care is discussed above at paragraphs 234 to 245.
[331] Aged Care (Living Longer Living Better) Act 2013 (Cth); Aged Care (Bond Security) Amendment Act 2013 (Cth); Aged Care (Bond Security) Levy Amendment Act 2013 (Cth); Australian Aged Care Quality Agency Act 2013 (Cth); Australian Aged Care Quality Agency (Transitional Provisions) Act 2013 (Cth).
[332] Australian Government Department of Health and Ageing, My Aged Care (the Aged Care Gateway) (12 November 2013) <http://www.livinglongerlivingbetter.gov.au/>.
[333] Australian Government Department of Health and Ageing, Living Longer Living Better (12 November 2013) <http://www.livinglongerlivingbetter.gov.au/>. Since the change of government in September 2013, applications for the Workforce Supplement for aged care workers have been suspended.
[334] Australian Government, National Ageing and Aged Care Strategy for People from Culturally and Linguistically Diverse (CALD) Backgrounds 2012.
[335] Australian Government, National Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Ageing and Aged Care Strategy 2012.
[336] Australian Government Department of Health and Ageing, Australian Government Response to the Productivity Commission’s Caring for Older Australians Report (12 November 2013) <http://www.livinglongerlivingbetter.gov.au/ >.
[337] Australian Health Ministers’ Advisory Council, National Framework for Advance Health Care Directives September 2011.
[338] The ALRC acknowledges that these terms are subjective and that in many circumstances such behaviour can be understood as ‘adaptive behaviours to maladaptive environments’ and may be a ‘legitimate response to difficult environments and situations’: Paul Ramcharan et al, ‘Experiences of Restrictive Practices: A View from People with Disabilities and Family Carers’ (Research Report, Office of the Senior Practitioner, 2009) 2.
[339] Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 241.
[340] See, eg, definitions in Australian Government, Draft Proposed National Framework for Reducing the Use of Restrictive Practices in the Disability Service Sector, May 2013; Disability Act 2006 (Vic) s 3(1).
[341] See, eg, Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 91–101.
[342] UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) arts 3, 14–17, 19.
[343] See, eg, Manfred Nowak, Special Rapporteur, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 63rd Sess, UN Doc A/63/175 (28 July 2008) 9.
[344] Committee on the Rights of Persons with Disability, above n 15, 36.
[345] Disability Act 2006 (Vic); Disability Services Act 2006 (Qld), (Tas).
[346] Any person subject to restrictive intervention in disability services in Victoria must have a behaviour support plans (BSP). The BSP must outline the relevant supports and demonstrate that the restrictive intervention is the least restrictive option and is being used as a last resort. BSPs are designed to reduce the use of restrictive interventions: Disability Act 2006 (Vic) pt 7.
[347] For example, in NSW, guidelines govern the use of restrictive practices in relation to adults. In addition, a distinct number of restrictive practices, referred to as restricted practices, have additional safeguards in place which require completion of a documented plan, of which authorisation by an internal Restricted Practices Authorisation mechanism is a part. Guardians appointed under the Guardianship Act 1987 (NSW) may be authorised to consent to the use of restrictive practices for people over 16 years of age. Restrictive practices in relation to children are governed by Children and Young Persons (Care and Protection) Act 1998 (NSW) and Children and Young Persons (Care and Protection) Regulation 2012 (NSW). Note, there is an ongoing review of the Disability Services Act 1993 (NSW).
[348] Mental Health Act 1986 (Vic) ss 81, 82; Chief Psychiatrists Guideline Seclusion in Approved Mental Health Services (2011).
[349] Mental Health Act 2000 (Qld) pt 4A; Queensland Health Department, Policy Statement on Reducing and Where Possible Eliminating Restraint and Seclusion in Queensland Mental Health Services (2008). See also, Queensland Health Department, Mental Health Act 2000 Resources Guide (2012).
[350] See, eg, Mental Health Act 2009 (SA) ss 7(h), 90, 98; Mental Health Act 1996 (WA) ss 116–124; Mental Health and Related Services Act 1998 (NT) ss 61, 62; Mental Health (Treatment and Care) Act 1994 (ACT).
[351] NSW Health, Aggression, Seclusion & Restraint in Mental Health Facilities in NSW Policy Directive, June 2012.
[352] Mental Health Act 1996 (Tas) ss 34–36; Mental Health Act 2013 (Tas).
[353] For example: Victoria–drafting of new mental health legislation is ongoing but a bill is expected to be introduced into Parliament in 2013; WA–the Mental Health Bill 2013 (WA) was introduced into Parliament in October 2013; ACT–the Mental Health (Treatment and Care) Amendment Bill 2013 (ACT) is available as an exposure draft; Queensland–despite relatively recent legislation there is currently a review focusing on areas for improvement of the legislation; NSW–a review commenced in mid-2012 and reported to Parliament in May 2013. An Expert Reference Group has been appointed and consultations are ongoing.
[354] ‘Evidence-Based Guidelines to Reduce the Need for Restrictive Practices in the Disability Sector’ (Australian Psychological Society, 2011).
[355] See, eg, Advocacy for Inclusion, Submission to Proposed National Framework for Reducing Restrictive Practices in the Disability Service Sector, June 2013; Federation of Community Legal Centres Victoria, Submission to Proposed National Framework for Reducing Restrictive Practices in the Disability Service Sector, June 2013.
[356] National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013 (Cth) pt 4.
[357] 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 23.
[358] Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 15–16.
[359] Marriage Act 1961 (Cth) s 23B(1)(d)(iii).
[360] Ibid s 100.
[361] Ibid pt IV div 1.
[362] Ibid s 39G.
[363] Australian Government Registrar of Marriage Celebrants, Guidelines on the Marriage Act 1961 for Marriage Celebrants, February 2012; Australian Government Registrar of Marriage Celebrants, Guidelines on Advertising for Commonwealth-Registered Marriage Celebrants, August 2012; Australian Government Registrar of Marriage Celebrants, Guidelines on Conflict of Interest and Benefit to Business for Commonwealth-Registered Marriage Celebrants, August 2012. Note, at the time of writing the Guidelines on the Marriage Act 1961 were under review.
[364] Marriage Act 1961 (Cth) s 39H.
[365] Australian Government Registrar of Marriage Celebrants, Guidelines on the Marriage Act 1961 for Marriage Celebrants, February 2012, 77–80.
[366] Ibid 79.
[367] Ibid 80.
[368] Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 152.
[369] Ibid.
[370] Ibid 158.
[371] See, eg, Michael Kirby, ‘Adult Guardianship: Law, Autonomy and Sexuality’ (2013) 20 Journal of Law and Medicine 866, 873.
[372] See, eg, Crimes Act 1900 (NSW) s 61HA(4)(a) and the broad definition of cognitive impairment under s 61H(1A); Crimes Act 1958 (Vic) ss 50–52.
[373] See, eg, Touching Base, Policy and Procedural Guide for Disability Service Providers Supporting Clients to Access Sex Workers, 2011.
[374] See, eg, Michael Kirby, above n 371. See also UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) arts 16, 22, 23.
[375] Sterilisation is discussed at paragraphs 242 to 245 above.
[376] See, eg, Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 153–155; New South Wales, Care and Support–Final Report on Child Protection Services: Standing Committee on Social Issues, Parl Paper No 408 (2002) 2002; New South Wales, Making It Happen–Final Report on Disability Services: Standing Committee on Social Issues, Parl Paper No 247 (2002); Gwynnyth Llewellyn, David McConnell and Luisa Ferronato, ‘Prevalence and Outcomes for Parents with Disabilities and Their Children in an Australian Court Sample’ (2003) 27 Child Abuse & Neglect 235.
[377] See, eg, Family Law Act 1975 (Cth) s 123(1)(o); Federal Magistrates Act 1999 (Cth) s 87(1)(h); Family Law Rules 2004 (Cth) rr 6.08, 6.09, 6.10(1); Federal Circuit Court Rules 2001 (Cth) rr 11.08, 11.09, 11.11.
[378] For example, reports by family consultants employed by the Family Court as well as reports by other experts and report writers: Family Law Rules 2004 (Cth) pt 15.5; Family Law Regulations 1984 (Cth) reg 7. Relevant experts: Ch 15 expert, Reg 7 report writer not employed by Court, family consultant employed by court.
[379] Primary considerations under s 60CC(2), secondary considerations under s 60CC(3): Family Law Act 1975 (Cth).
[380] Section 72 provides entitlement to spousal maintenance in some circumstances, section 75(2) considerations include future capacity to earn: Ibid.
[381] Section 79 provides power to make orders and consider contributions, but also need to consider future needs under s 75(2): Ibid.
[382] Australian Bureau of Statistics, Children with a Disability, Australian Social Trends, March Quarter 2012, Cat No 4102.0 (2012).
[383] Ibid.
[384] Ibid.
[385] UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).
[386] Council of Australian Governments, Protecting Children Is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020.
[387] Ibid.
[388] Committee on the Rights of Persons with Disability, above n 15, para 18.
[389] The role of family, carers and other supporters is discussed above at paragraphs 108 to 111.
[390] Schetzer and Henderson, above n 222.
[391] 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.
[392] 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).
[393] Australian Bureau of Statistics, Disability, Australia, 2009, Cat No 4446.0 (2011).
[394] Ibid.
[395] 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.
[396] 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.
[397] 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.
[398] Ibid preamble (q).
[399] ‘A Question of Justice: Access to Participation for People with Disabilities in Contact with the Justice System’, above n 218.
[400] ‘National Plan to Reduce Violence against Women and Their Children 2010-2022’ (Council of Australian Governments, February 2011).
[401] Arthur O’Reilly, The Right to Decent Work of Persons with Disabilities (International Labour Organization, 2007) 47–50.
[402] Sage, Encyclopedia of Disability (2006), Vol 2, ‘Gender, International’ as at 11 November 2013, 764.
[403] 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/>.
[404] 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).
[405] 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.
[406] Productivity Commission, ‘Disability Care and Support’, above n 29, ch 11.
[407] Productivity Commission, ‘Disability Care and Support’, above n 29.
[408] 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.
[409] Productivity Commission, ‘Disability Care and Support’, above n 29.
[410] Ibid.
[411] Cock, above n 221.
[412] There is a ten year waiting period for DSP for migrants.
[413] 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.
[414] Australian Institute of Health and Welfare, Australia’s Welfare 2011, Cat No AUS 412 (2011) 11.
[415] Ibid 12.
[416] 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.
[417] NSW Gay and Lesbian Rights Lobby and City of Sydney, Uncloseting Discrimination: Consultation Report on the Intersections of Discrimination, March 2012, 41.
[418] 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.
[419] 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).
[420] ‘National Disability Agreement’, above n 33, 32.
[421] Australian Bureau of Statistics, Disability and Work, Australian Social Trends, March Quarter 2012, Cat No 4102.0 (2012).
[422] 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.
[423] 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).