The landmark Disability Royal Commission wrapped last year with a 13-volume report making 222 recommendations and the first of these recommendations called on the Federal government to enact a Disability Rights Act.
What that enactment might look like was the subject of a webinar this week, hosted by the Melbourne Disability Institute. The webinar featured Dr Alastair McEwan, Disability Discrimination Commissioner from 2016-2019; Micheline Lee, disability activist and author; Natalie Wade founder of Equality Lawyers; and Elle Gibbs, writer and disability activist.
The discussion focused on the differences between a Disability Rights Act and Australia’s Disability Discrimination Act.
Natalie Wade said although the two concepts are linked, they have fundamental differences. She said the Disability Discrimination Act was a “significant advancement” in the rights of Australians with disability – but it is a reactive tool, meaning it relies on those who experience wrongdoing to make a complaint to address the situation. She said a strong Disability Rights Act would also have a complaints mechanism to uphold human rights in the context of disability but would also enshrine specific rights in law for people with disability through positive duties – meaning government, non-government and community-based actors would have to shift their behaviour.
Alastair McEwan agreed that disability-specific legislation would acknowledge the history of exclusion and mistreatment that Australians with disability have suffered. And although the Convention recognises the rights of people with disability, he said it has little intersectionality, whereas a Federal Disability Rights Act could be tailored to Australian society and take intersectionality into account.
Reform of the NDIS could also help drive greater recognition of the rights of people with disability, according to Micheline Lee. She said adopting a human rights approach to inclusion and disability rights will advance action and conversation and bring Australia into alignment with the UNCRPD, which obliges signatories to remove societal barriers that can inhibit inclusion.
Currently, the dominance of the medical model of disability and the market-based approach to support emphasises individual solutions and access to services, and societal barriers and attitudes that can support inclusion can be neglected as a result. The NDIS has been powerful in advancing human rights but lost its way by relying too much on the market-based approach, leading to inequity, she said.
Elle Gibbs said having a national standard setting out the rights of people with disability and a complaints mechanism to enforce this is important, but people with disability should be in charge of driving this change. But she cautioned that the community needs to articulate why the Act would be a solution, to help sell it to those who don’t understand and explain why a general human rights act would not adequately cover people with disability and the unique discrimination they face. The conversation should be framed in terms of values in what parts of society do we value and want everyone to have access to, and how the Act could be a tool for change.