Disability Rights Act - what will it mean?

Australia’s history of legislating for people with disabilities has mostly been, at best, focussed on service-delivery and charity, and at worst, oppressive and extremely violent against people with disabilities.

Parliaments over our colonised history have sought to make provision for people with disability that have ranged from:

lawfully detaining people with disabilities on the basis of their disabilities via the Dangerous Lunatics Act 1843
providing social security through Invalid and Old-age Pensions Act in 1908
the provision of funding for disability services and programs in the Disability Services Act 1986
the removal of decision-making capacity most contemporarily via Guardianship and Administration Acts through the States and Territories, introduced mostly in the early-90s
And of course, the protection against discrimination and pursuit of equality through the Disability Discrimination Act 1992
funding of self-determined supports and services with the introduction of the landmark National Disability Insurance Scheme Act 2013.

Our nation’s steadily advancing understanding of the rights of people with disabilities can be traced through our law-making. Our understanding of the human rights of disabled people has gone from “lunatic asylums” to public money being given to disabled people to purchase supports and services that they need, to realise their right to social and economic participation.

The first recommendation of the Royal Commission into the Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) once-in-a-generation report, calls for the establishment of a Disability Rights Act ‘to translate the international human rights of people with disability into domestic Australian law’[1]. This would be a significant and unprecedented shift toward realising the human rights of people with disability, but what does that even mean?

A note on timing

At the outset, at the time of writing, the Disability Rights Act – or DRA as we should start to affectionately call it – does not exist. The government has not committed to any recommendations as they continue to decide how they will respond to the Disability Royal Commission recommendations via an intergovernmental taskforce. A response is expected in March 2024 which despite the obvious need for the Commonwealth, State and Territory Governments to consider the formidable 222 recommendations is, in my view, an insensitive amount of time to wait to provide any response whatsoever to these important recommendations. Some of the recommendations which required Commonwealth Government action only, including introducing a DRA were good options to pursue immediately, if for no other reason, as a mark of respect to the people with disabilities who told their stories and experienced lifetimes of harm without sufficient legal protection or recourse.

In recommending the establishment of a DRA, the Disability Royal Commission is clear that the DRA should be enacted after consultation with people with disability and other key stakeholders on the content of the Act.[2]

What would the DRA do?

First, the DRA would create, in law, specific rights including:

non-discrimination and equality before the law
equal recognition before the law
access and use supports, including advocacy services, in making decisions, communicating their will and preferences, and developing their decision-making ability
live free from exploitation, violence, and abuse
liberty and security of person
equitable access to health services[3]

You might read that list of human rights and think “what does that even mean?”. Well, a country without those rights legislated is the country we have now. Significant rates of violence, discrimination, lawful detention of people and removal of decision-making capacity and ineffective legal recourse when health services fail us. Enshrining human rights in law is fundamental to understanding, realising, and enforcing those rights.

Laws are also instrumental to informing our community expectations. The early whip-through of our legislative history of disability in Australia shows how our community conversations have evolved with the law. We referred to disabled people as lunatics or invalids when the law termed them as such. We thought that people with disabilities had to be subjects of services determined by government when funding was structured that way through the Disability Services Act. We started to focus our conversation on social and economic participation and choice and control when the NDIS Act taught us that language and those concepts. Having these rights enshrined in the DRA will create an enforceable right and that’s really important, absolutely, but it is also going to teach us language that transforms the narrative. Realising human rights is as much about conversations as it is about laws.

Enforceable penalties

The DRA would establish a National Disability Commission, which would be led by a disabled Chair-Commissioner alongside Commissioners representing areas of intersectionality[4].

Unlike other equality-focussed disability-laws like the Disability Discrimination Act, the DRA would have bold remedies and enforcement provisions. Those clearly articulated rights will not be subject only to an individual complaints mechanism that is overly onerous on disabled people. Instead individuals who experience a violation of their rights will be able to seek remedy and enforcement by the independent statutory authority, the National Disability Commission, established under the DRA. The Commission will also be able to initiate their own enforcement, relieving the pressure on disabled people[5]. With powers to conduct inquiries, entering into enforceable undertakings, issuing compliance notices and seeking injunctions to stop or prevent breaches of the DRA, the National Disability Commission promises to provide a place for enforceability and truth-telling. A nation first for disabled people.

Duty holders

Other than creating an unprecedented set of enforceable human rights for people with disabilities and establishing a disabled-led, powerful National Disability Commission, the DRA creates history by imposing duties on “primary duty-holders." It is proposed that the DRA require that the Commonwealth public sector (and think about all the impactful areas of responsibility and decision-making that encompasses!) have a duty to:

consider and act consistently with disability rights
consult with people with disability
promote disability equality and inclusion
provide an interpreter
provide accessible information
support compliance with the DRA[6]

Think about how different our nation would be and the delivery of Commonwealth government services would be if those duties existed. Changes to Commonwealth public policies and programs subject to consultation with those affected, active campaigns to promote disability equality and inclusion, accessible information in times of national emergencies, finally consistent use of Auslan interpreters in Commonwealth communications. These changes are significant and would immediately advance the practical realisation of disability rights in government business.

While it is proposed that these duties be imposed for the Commonwealth public sector, the Disability Royal Commission have sensibly recommended that State and Territories also enact protections equivalent to those in the DRA.

But this is all sounding very government-focussed, and it is important not to get trapped in the dogma of thinking that disability rights can be realised, protected, and advanced by the work of government only. There is a significant role for private sector and the community to play. Commissioners Bennett, Galbally and McEwin considered that duty-holders under the DRA should include private sector providers delivering services through the NDIS from the outset.[7] This would mean that those duties outlined above like providing accessible information, an interpreter and promoting disability equality and inclusion would be required of the private sector providers. The remaining Commissioners, including Chair Sackville took the view that the inclusion of private sector providers as duty-holders should be considered at the five-year review of the DRA.[8] But the business and ethical case for disability service providers to be allies to the disability community and adopt active investment in the realisation of disability rights is self-evident and clearly aligned to existing corporate aims and objectives. Disability service providers should be at the forefront of taking up the role of duty-holders under a DRA.

Human Rights Act

The discussion on a DRA needs to be firmly sat within the broader Australian conversation on a Federal Human Rights Act. There have been calls for decades for Australia to have a Human Rights Act. We are the only liberal democracy in the world without one.[9] In 2022, the Australian Human Rights Commission outlined their proposal in the Free and Equal report. While a Federal Human Rights Act is essential to the advancement of disability rights in Australia, the establishment of a DRA is required to actively address the human rights concerns faced by disabled Australians. It is a complementary but not replacement activity to the establishment of a Federal Human Rights Act.

So where to from here?

While we wait for the response from the Australian Government, it is imperative that you read Volume 4 of the Disability Royal Commission report to get into the detail of the DRA (this article should be helpful but is no replacement for those 380 pages). Start the conversation with your community and local Members of Parliament to call for the introduction of a DRA in 2024!

[1] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Executive Summary, Our Vision for an inclusive Australia and Recommendations, p. 57, 193.

[2] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Volume 4 – Realising the Human Rights of People with Disability, p. 162.

[3] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Volume 4 – Realising the Human Rights of People with Disability, p. 163.

[4] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Executive Summary, Our Vision for an inclusive Australia and Recommendations, p. 211.

[5] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Volume 4 – Realising the Human Rights of People with Disability, p. 224-232.

[6] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Volume 4 – Realising the Human Rights of People with Disability, p. 163-164.

[7] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Volume 4 – Realising the Human Rights of People with Disability, p. 169.

[8] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Volume 4 – Realising the Human Rights of People with Disability, p. 169.

[9] Australian Human Rights Commission, A National Human Rights Act for Australia (7 March 2023), < https://humanrights.gov.au/human-rights-act-for-australia>.