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The Final Report of the Royal Commission into the Violence, Abuse and Neglect and Exploitation of People with Disability (DRC) is the most significant policy document in the disability sector in living memory. The Report is a thorough examination of what it is like to live with a disability and to work within the systems that support us. One of the most significant recommendations was the creation of a Disability Rights Act (DRA).
In July 2024, the Federal Government responded to the recommendations. As it turned out, they only accepted 6% of them, and set aside the implementation of a DRA.
In my view, this was an enormous missed opportunity. A DRA provides the most potent way to exercise the rights the disability sector has fought for, for many decades. And as the DRC testimonies have demonstrated, these rights are regularly ignored.
It's worth examining why the government took a different view[, why some, including the Federal Government advocate for a Human Rights Act (HRA), and why the DRA should still be implemented anyway.
Why Recommend a Disability Rights Act?
The DRC Final Report recommends what a DRA should incorporate and demonstrates why it is necessary. A DRA provides a structural basis for people with disabilities to access rights, some of which have been denied to them for decades.
The Commissioners argue that the proposed DRA should operate as the minimum standard. Under it, people with disabilities would have the legal authority to prevent injustice and receive full recognition before the law. It would also entitle them to accessibility and a high standard of healthcare. As well as working to avoid all forms of exploitation, violence and abuse, while promoting liberty and security.
It would further require the federal government to consult with people with disabilities when developing new laws, new initiatives, or service changes, and promoting accessibility and communication when developing government policy that affects us.
To ensure these aims can be achieved, the Commissioners recommended the introduction of a Disability Rights Federal Minister, who would also hold a position in Cabinet to spearhead the implementation and development of these programs. A prospective seat at the Cabinet table is crucial, because that is where most policy change occurs within the Federal Government. This initiative alone turbocharges the impact of any legislative change, by ensuring the enforcement of disability rights remains a priority for any future Federal Government.
The proposed legislation also includes a government authority that focusses on this legislation. This authority would be known as the Disability Rights Commission. It would be established to ensure that those breaching the DRA would be held accountable, with the possibility of legal appeals being heard in the Federal Court of Australia.
The Government's response
In a press conference to announce the federal government's response to the DRC Final Report, Social Services Minister Amanda Rishworth was asked about the government's refusal to commit to a DRA. She said:
'…there is work being done by the Parliamentary Committee on recommending a Human Rights Commission or a Human Rights Act…There are mixed views in the disability community about whether they would prefer a Disability Rights Act or for Disability to be embedded in a Human Rights Act…So, that is work that we'll undertake immediately while we do the sequencing work on a Human Rights Act versus a Disability Rights Act.’
In its response to the DRC, the Government has agreed to amend the Disability Discrimination Act 1992 to include stronger language around what exactly constitutes discrimination and to strengthen the Human Rights Commission's enforcement powers. Furthermore, these amendments will also increase the obligation of the community to create adjustments for people with disabilities, by explicitly taking the word 'reasonable' out of the legislation to eliminate any grey area about what constitutes discrimination, including vilification and abuse.
Interestingly, the federal government cited division within the disability community as their primary reason to forego a DRA. Curious, given divisions in the disability community about how to respond to some recommendations in the NDIS Review, or the new legislation, have not stopped the government from developing the policies it wants to implement. For example, changes relating to the NDIS registration process, which remains a polarising topic within the disability sector.
Why are some people against a DRA? The case for a HRA instead.
The Minister is correct, though. Some people in the disability community would prefer that disability rights be incorporated within a new HRA. Disability Discrimination Commissioner Rosemary Kayess argues that disability rights should be within a universally applicable framework that includes everyone in Australia. Kayess says that the rights of people with disability should not be separated from the rights of others within the community, and a DRA could potentially perpetuate segregation. Instead, a HRA would incorporate these rights within the larger framework, which embraces an intersectional spectrum beyond disability and recognises the diversity of people with disability.
The Human Rights Commission believes that a HRA is necessary to ensure comprehensive legal protection for all Australians, particularly those presenting minority groups. A Human Right Commission Position Paper that makes the case for a HRA was published at the end of 2022. It contends that this legislation must comply with key aspects of international treaties that the Government has signed, including the United Nations Convention on the Rights of People with Disability (UNCRPD).
The paper also argues that having single discrimination acts or representative legislation that looks at one minority group in isolation is not enough to cover discriminatory laws under federal legislation. Although some states and territories, such as the ACT and Queensland, have a HRA, there is not an adequate law to cover human rights protection under federal regulations, particularly in the states where no such law exists. Further, a federal HRA would give the Human Rights Commission more power to enforce the law. Although complainants can take a case to the Human Rights Commission, discrimination breaches cannot be heard as part of court proceedings, nor can they seek legal remedies.
A way forward?
After five years of deliberations and testimonies, the DRC Final Report suggests that there are many unique issues for people with disability that must be addressed. The DRC was the most significant opportunity we’ve had to tell the federal government that these rights, which are certified by pieces of legislation - including the Disability Discrimination Act and the UNCRPD, have not been enough. The government has not consistently implemented nor fully utilised its powers. The DRC argues this is because the rights of people with disabilities have not been clearly defined or expressed. If everyone does not understand their rights, how can these be enforced?
The key to the DRA proposal is its enforcement power. A Disability Rights Commission could identify breaches of the rights of people with disability and enforce legal consequences. The significance of such powers cannot be underestimated given that, as a cohort, people with disabilities have historically been marginalised and segregated from the rest of the community. At the same time, our political and legal rights have often been ignored, as documented in Volume 3 of the DRC Final Report.
This is not to say proponents of enforcing disability rights in the HRA do not have strong arguments. The federal government's response is a red herring. The Federal Government appears reluctant to implement significant changes to disability policy in an election year. Its lack of a formal response to the NDIS review eight months after the release of the Final Report, and only accepting twelve recommendations out of the entire Royal Commission Final Report, suggests its risk appetite is low. It is not in the Government's interest to implement comprehensive structural reform less than 12 months before a re-election campaign. If the Government is returned, it may use its new mandate to implement more of these recommendations from both reports.
So, why can't we have both?
Our rights certainly need to be expressed and respected within the rest of the community. A HRA would undoubtedly be a significant step in the right direction. However, the powers of a DRA would go above and beyond legal recourse. If a Federal Minister were appointed to oversee programs that uphold disability rights and implement initiatives on every occasion that new government policy was enacted, it would bring disability rights to the forefront of every political conversation. Sure, a HRA will protect the rights of people with disabilities and others in minority groups. But a DRA would be a stronger political instrument to ensure the rights of people with disabilities are prominent in Australia's political and legal conversation. By being fully integrated into our political systems, we reduce the risk of if becoming merely another compliance measure.
