NDIA Accountability Project

Review of the Disability Discrimination Act: Recommendations for Migration Law Reform

‹ PrevPage 1 of 24 · Source p. 1Next ›

welcoming
DISABILITY

Submission

Attorney-General’s Department Review: Disability Discrimination Act 1992 (Cth)

Australian Lawyers for Human Rights | Down Syndrome Australia

Image Description: a child with Down syndrome and a parent or carer play with small wooden elephants

1

This submission was prepared by the Welcoming Disability Campaign - a joint civil society campaign led by Australian Lawyers for Human Rights and Down Syndrome Australia.

The seven (7) recommendations within this submission are endorsed by the following eighty-nine (89) organisations and experts:

  1. Australian Lawyers for Human Rights (ALHR)
  2. Down Syndrome Australia
  3. Women With Disabilities Australia
  4. Inclusion Australia
  5. Children and Young People With Disability Australia
  6. National Ethnic Disability Alliance (NEDA)
  7. Australian Autism Alliance
  8. Being - Mental Health Consumers
  9. Council for Intellectual Disability
  10. LGBTIQ+ Health Australia
  11. HIV/AIDS Legal Centre (HALC)
  12. National Centre of Excellence in Intellectual Disability Health
  13. The Australasian Society for Intellectual Disability (ASID)
  14. Neurodivergent Labor
  15. Migrant Workers Centre
  16. Amnesty International Australia
  17. Australian Lawyers Alliance
  18. Autistic Self Advocacy Network of Australia and New Zealand
  19. Mums4refugees National team
  20. Justice and Equity Centre
  21. Queensland Advocacy for Inclusion
  22. Uniting Church in Australia Queensland
  23. Advocacy Law Alliance (Disability Advocacy NSW, Mid North Coast Legal Centre, The Helpline and Disability Law NSW)
  24. Centre for law and Social Justice, Newcastle University
  25. Human Rights For All
  26. Physical Disability Council of NSW
  27. ACT Down Syndrome & Intellectual Disability
  28. Down Syndrome and Intellectual Disability Queensland (DSIDQ)
  29. Down Syndrome Association of Western Australia
  30. All Means All
  31. Asylum Seeker Resource Centre (ASRC)
  32. Consumers of Mental Health WA
  33. Cri du Chat Australasia
  34. Crossing Borders
  35. Immigration Advice and Rights Centre
  36. Queensland Independent Disability Advocacy Network
  37. Redfern Legal Centre
  38. Rights Resource Network SA
  39. Mackay Advocacy Inc
  40. Make It Easy Pty Ltd

2

  1. University of Sydney Disabilities Collective
  2. SCALES Community Legal Centre
  3. Estrin Saul Lawyers
  4. Carina Ford Immigration Lawyers
  5. Dowson Turco Lawyers
  6. The Growing Space
  7. Western Sydney Community Forum
  8. Women with Disabilities Victoria

Individuals

  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy

3

  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy
  • redacted: s47F - personal privacy

[Logos of endorsing organisations]

4

Contents

5

“Australians value fairness and compassion. Our immigration policies should reflect this rather than treating people with a disability or health condition as a lesser valued class.”

redacted: s47F - personal privacy, Former Australian Disability Discrimination Commissioner

1. Acknowledgement

Welcoming Disability acknowledges the traditional owners and custodians of the lands, rivers and seas on which we work, live and travel across Australia as the first people of this country. We recognise that the land belonging to these peoples was never ceded. It always was and always will be Aboriginal and Torres Strait Islander land. We pay our deep respect to Elders past and present.

2. About the Welcoming Disability Campaign

Launched in 2020, Welcoming Disability is a joint civil society campaign led by Australian Lawyers for Human Rights (ALHR) and Down Syndrome Australia (DSA) and supported by over one hundred (100) organisations and experts. The Campaign seeks reform of Australia’s migration health laws and policies to remove their discriminatory impact on people with disabilities and health conditions.

Our Key Campaign priorities include:

  • Reform of Australia’s discriminatory migration health regulations practices;
  • Removal of the exemption of the Migration Act 1958 (Cth) from the Disability Discrimination Act 1992 (Cth);
  • Ensuring Australia’s Migration Health framework is consistent with the core United Nations human rights treaties to which Australia is a party, including the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Rights of the Child (CRC).

3. Executive Summary

Welcoming Disability is grateful for the opportunity to provide this Submission to the Attorney-General’s Department (Department) into the Review of the Disability Discrimination Act 1992 (Cth) (DDA), as part of the Australian Government’s response to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC). We also acknowledge the development of Australia’s Disability Strategy 2021–2031^1 (Strategy) – Australia’s national disability policy framework - and recognise that improving the DDA will further the Outcome Areas under the Strategy.

Welcoming Disability addresses the questions set out for the Review in the Issues Paper (Issues) based on DRC recommendation 4.31.^2

Recommendation of the Disability Royal Commission

Recommendation 4.31 of the DRC recommended that:

a. The Australian Government should initiate a review of the operation of section 52 of the *Disability

^1 Australia’s Disability Strategy 2021–2031, Department of Health Disability and Ageing (Web page) https://www.health.gov.au/our-work/australias-disability-strategy#australias-disability-strategy-20212031
^2 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability’s Final Report, 29 September 2023, p.207 at https://disability.royalcommission.gov.au/publications/final-report

6

Discrimination Act 1992* (Cth), insofar as it authorises discrimination against people with disability seeking to enter Australia temporarily or permanently. The review should consider changes to the legislation and migration practices to eliminate or minimise the discrimination b. The review should be conducted with particular reference to the rights recognised by the Convention on the Rights of Persons with Disabilities and the Concluding observations on the combined second and third periodic reports of Australia made by the United Nations Committee on the Rights of Persons with Disabilities.^3

Scope of this Submission

This Submission’s approach notes in particular the following points from the Issues paper:

The Disability Discrimination Act makes it unlawful to discriminate against a person because of their disability in many areas of public life. Both direct and indirect discrimination are unlawful. Direct discrimination occurs when a person with disability is treated less favourably compared to a person without disability in similar circumstances, and a reason for the treatment is the person’s disability. Indirect discrimination occurs when a person with disability is required to comply with a condition or requirement which applies to everyone, but they cannot comply because of their disability, and the condition or requirement disadvantages a person with disability.

Further

The review will… not consider Australia’s anti‑discrimination framework as a whole. Changes to Commonwealth laws other than the Disability Discrimination Act… will only be considered where they are needed to implement the reforms to the Disability Discrimination Act.

And

This review does not question whether the Disability Discrimination Act should be improved, but rather seeks input on the best way to amend the Disability Discrimination Act to improve the experiences of people with disability, and people with duties under the Disability Discrimination Act, alike.

As Australia’s peak coalition for the removal of disability discrimination in migration, Welcoming Disability begins this Submission by addressing the exemption of the Migration Act (Cth) 1958 from the DDA, as outlined in Issues, Part 5 – Exemptions.

We also make substantive recommendations on Part 1 – Updating understandings of disability and disability discrimination, with additional comment on Part 2 – Positive duty to eliminate discrimination, Part 4 – Access to justice, and Part 6 – Modernising the Disability Discrimination Act.

The Need for Reform

Australia’s migration laws discriminate against people with a disability or a health issue applying to enter Australia. This discrimination is rendered legal under Australia’s domestic legislation by virtue of the exemption of the Migration Act 1958 (Cth) from the scope of the Disability Discrimination Act 1992 (Cth). Consequently, the Australian government is treating people who have a disability or a health issue differently from other prospective migrants and this is unfair. Regardless of their status or attributes, all people have a right to non-discrimination and equality before the law.

^3 Ibid

7

Neither adults nor children with disability or health conditions should be denied entry, forced to leave Australia or be unable to make a new life contributing to our communities in a myriad of diverse and valuable ways, purely because of arbitrary assumptions and thresholds that are applied specifically on the basis of their health or disability status.

This approach reinforces the stigma and discrimination that people with disability and health conditions already face. It is archaic, degrading and takes no account of the applicant’s or their family’s ability to contribute socially and economically to the Australian community.

Australia’s Migration Health framework should be consistent with its obligations under the core United Nations human rights treaties to which it is a party, including the Convention on the Rights of Persons with Disabilities (CRPD)^4 and the Convention on the Rights of the Child^5 (CRC).

Welcoming Disability believes that the Australian people are committed to valuing inclusion, diversity and equality.

To live up to this commitment, the Australian Government must amend the DDA to update and narrow the exemption of the Migration Act 1958 (Cth) from the Disability Discrimination Act 1992 (Cth). Australia’s laws should not be premised on inherent, arbitrary assumptions that discriminating against people with disability or health conditions, and their families, is legally permissible because they are necessarily a net burden to Australian society, rather than a net asset to our communities, schools and workplaces. We urge the Review to reflect on whether this is an appropriate legal and policy premise for a modern, contemporary democracy.

4. Summary of Recommendations

Recommendation 1: Section 52 should be amended such that the extent of discrimination it renders legally permissible is narrowed while still balancing the policy consideration of protecting public health.

Recommendation 2: Based on Recommendation 1 above, that section 52 be amended, we further recommend that the Federal Government review and remove:

(1) Australia’s interpretative declaration on Article 18 of the Convention on the Rights of Persons with Disabilities^6; (2) all formalities and procedures relating to migration and asylum, in order to ensure compliance with Australia’s obligations under: a. the Convention on the Rights of Persons with Disabilities b. the Convention on the Rights of the Child c. the remaining core United Nations human rights treaties to which Australia is a State Party.

^4 United Nations, Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) (‘CRPD’)
^5 United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).
^6 Australia, Interpretative Declaration to the Convention on the Rights of Persons with Disabilities, signed 17 July 2008, [2008] ATNIF 15, [2008] ATS 12 (entered into force 16 August 2008).

8

Recommendation 3: The objects of the DDA should be amended to explicitly state that one of the purposes of the Act is to incorporate Australia’s binding international legal obligations under the Convention on the Rights of Persons with Disabilities into Australian domestic legislation.

Recommendation 4: The DDA should be amended to specify that international human rights law, including but not limited to treaties and conventions and the judgments of domestic, foreign and international courts and tribunals and treaty monitoring bodies relevant to a human right may be considered in interpreting the DDA’s statutory provisions.

Recommendation 5: The Department of Home Affairs (the Department) should be re-cast as a duty holder. This positive duty to remove discrimination should be reviewed by the Australian Human Rights Commission.

Recommendation 6: An avenue of complaint or appeal under the DDA should be made available to all those who experience discrimination under the Migration Act, Regulations or associated instruments, and by those implementing the Act.

Recommendation 7: Action plans prepared by duty holders under the DDA should be required to be updated overtime, and subject to guidance and minimum requirements. In particular:

(1) the time frames for implementation of action plans under the DDA be introduced and monitored; (2) outcome statements should be published as part of action plans; (3) an external body such as the Australian Human Rights Commission should oversee the implementation of action plans under the DDA.

5. Issues Part 5 – Exemptions

Consultation questions 33: Could any of the permanent exemptions be narrowed or updated, while balancing other policy considerations?

Section 52 of the DDA (section 52) states:

Migration

Divisions 1, 2 and 2A do not:

(a) affect discriminatory provisions in: (i) the Migration Act 1958; or (ii) a legislative instrument made under that Act; or (b) render unlawful anything that is permitted or required to be done by that Act or instrument.

Differentiating Public Health Measures from Disproportionately Discriminatory Disability Regulations

The effect of section 52 as currently drafted is to exempt the Migration Act 1958 (Cth) from the scope of the DDA is what Welcoming Disability submits is an overbroad way, leading to a Migration Health Requirement (MHR) within the Migration Regulations 1994 (Cth)^7 (Migration Regulations) that permits

^7 Schedule 4 to the Migration Regulations 1994 (Cth) https://www.legislation.gov.au/Details/F2017C01164

9

disproportionate, unreasonable and unjust discrimination against people with disability. Welcoming Disability submits that section 52 as currently drafted fails to differentiate between proportionate and reasonable measures designed to protect public health and safety and disproportionately discriminatory regulations that arbitrarily frame people with disability as a net burden on the Australian community.

Welcoming Disability notes that it is a core principle of international human rights law that any interference with a human right — including the right to freedom from discrimination on the basis of disability — must have a legitimate aim. That is, the interference or restriction must be proportionate and necessary (the principle of proportionality).

Welcoming Disability recognises that exemptions seek to balance the Disability Discrimination Act’s purpose of eliminating disability discrimination with the achievement of other competing policy priorities. For example, discrimination can reasonably be exempted, as it is at present under section 52, if it is to protect public health by containing infectious diseases and is reasonably necessary to protect public health.

We note that the section 52 exemption is in place to seek to manage public expenditure on health care and community services. It, therefore, attempts to balance the objects of the Disability Discrimination Act with the object of the Migration Act 1958 (Cth), which is ‘to regulate in the national interest, the coming into, and presence in, Australia of non-citizens.’

The Migration Health Requirement (MHR) — a mandatory component of almost all Australian visas, set by the Migration Regulations 1994 (Cth)^8 (Migration Regulations) relevantly — involves health screening of visa applicants to protect the Australian community from public health and safety risks, contain public expenditure on health care and community services, and safeguard the access of Australian citizens and permanent residents to healthcare and community services that are in short supply.

A Department of Home Affairs Policy Statement sets out the purpose of the Migration Health Requirement as follows:

The Migration Health Requirement:

  • balances the desire to minimise threats to public health and to contain public health expenditure against the desire to facilitate the entry of travellers and migrants to Australia efficiently.
  • focuses on protecting the Australian community from increased public health risks including tuberculosis and emerging communicable diseases.
  • serves to help control public expenditure on healthcare and community services, in addition to safeguarding the access of Australian citizens and Australian permanent residents to those services that are in short supply.^9

^8 Schedule 4 to the Migration Regulations 1994 (Cth) available at: https://www.legislation.gov.au/Details/F2017C01164 (Migration Regulations)
^9 Department of Home Affairs (Cth), Policy — Migration Regulations — Schedules > Sch 4/4005—4007 — The Health Requirement (Policy Statement) (‘Health Policy’).

10

Welcoming Disability submits that the DDA’s current section 52 exemption and the Migration Health requirement rendered permissible by that exemption is so overbroad in its application to people with disability or health conditions and their families that the interference with the rights of visa applicants to be free from discrimination is neither reasonable, proportionate nor necessary to achieve the legitimate aims of the Migration Act.

Further, we submit that the exemption as currently framed undermines the legitimate aims of the DDA, particularly in relation to the domestic incorporation of Australia’s international human rights law obligations under the Convention on the Rights of Persons with Disabilities.

Welcoming Disability accepts the Department of Home Affairs’ stated rationale for the Migration Health Requirement (MHR) regarding:

  • the need to protect the Australian community from public health risks associated with tuberculosis and communicable diseases; and
  • the need to balance this against the desire to facilitate the efficient entry into Australia of migrants and travellers.

Consequently, we acknowledge this as a ‘reasonable’ and ‘proportionate’ justification for the exemption of this aspect of the Migration Act and associated Regulations, instruments and acts from the DDA.

However, Welcoming Disability rejects the argument that section 52 is needed to contain public expenditure on health care and community services, and to safeguard the access of Australian citizens and permanent residents to healthcare and community services that are in short supply.

In particular, we reject the argument that this stated policy imperative is effectively balanced against the requirement of the DDA.

The relevant sections of the MHR are set out in clauses 1(c)(i) and 1(c)(ii) in Public Interest Criteria (PICs) 4005 and 4007 in schedule 4 to the Migration Regulations.^10

The Regulations require a visa applicant to be free from a disease or condition in relation to which;

(i) a person who has it would be likely to:

(A) require health care or community services; or (B) meet the medical criteria for the provision of a community service…;

and

(ii) the provision of the health care or community services would be likely to:

(A) result in a significant cost to the Australian community in the areas of health care and community services; or (B) prejudice the access of an Australian citizen or permanent resident to health care or community services;

^10 Migration Regulations Schedule 4, PICs 4005 and 4007 (N.7)

11

regardless of whether the health care or community services will actually be used in connection with the applicant.

In practice, safeguarding access to health care and community services, as set out in clauses 1(c)(i) and 1(c)(ii)(B), is designed solely to prevent ‘prejudice to access’ to certain medical services and procedures, currently defined as organ transplants (including haemopoietic stem cell transplants); and dialysis.^11 It is seldom invoked.

The major and most restrictive discriminatory thrust of the MHR relates to ‘significant cost to the Australian community in the area of health care or community services’.

With regard to health care and community services:

  • Every migrant entering Australia accesses health and community services, with the extent to which each individual will access such services unknown at time of entry.
  • Health care includes services covered by Medicare and the Pharmaceutical Benefits Scheme.
  • Community services are defined in the Migration Regulations as:
    • ‘includ[ing] the provision of an Australian social security benefit, allowance or pension’;^12 and
    • under Policy, are also taken to include services such as supported accommodation, special education, home and community care.^13

The imputed costs in the area of health and community services of each visa applicant with a disability or health condition, is currently assessed by the Medical Officer of the Commonwealth (MOC) against a theoretical, arbitrary and non-transparent ‘significant cost threshold’, applied irrespective of whether services will actually be used and irrespective of the fact that many services which may be used, will also be used by people without disability or known health conditions, who are not subject to the same assessment.

Section 52 itself acknowledges that certain provisions are discriminatory. To treat the cost of services differently based on whether they will be provided to a visa applicant with disability or a known health condition or to a visa applicant without a disability or known health conditions is unreasonable and discriminatory.

Consider, for example, services such as education, when only children who require education support have their education needs taken into consideration for the MHR; or health and pharmaceuticals, when every migrant accesses these services and products, not simply those with a known health condition.

When assessing whether or not an applicant meets the MHR, the Medical Officer of the Commonwealth (MOC) does not assess whether or not the actual provision of services, in the case of a given applicant, would be likely to result in a cost to the community. Rather, the MOC assesses the costs of an applicant on the basis of a hypothetical person with a similar condition at the same level of severity who would be entitled to use those services, ‘regardless of whether the health care or community services will actually be used in connection with the applicant’. This is the so-called ‘hypothetical person’ test, derived from the

^11 Health Policy, 17.5, Prejudice to Access (N.8)
^12 Migration Regulations, reg 1.03 (n.7)
^13 Health Policy, 17.3, Significant costs (N.8)

12

2005 Robinson Federal Court case (Robinson v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626) (Robinson).

Automatically discriminating against a visa applicant on an arbitrary, medicalised assumption that a person with a disability is necessarily a net burden to society and will not be a person who benefits Australia is demeaning, dehumanising and an affront to the foundational principles of the Convention on the Rights of Persons with Disabilities. It is neither reasonable, proportionate nor necessary for the exemption within the DDA to enable such expansive discrimination against visa applicants with disability or health conditions.

This approach also overlooks the economic benefits that migrants bring to Australia. The migration application process is rigorous and only visa applicants who have already met every other criterion for grant of a visa are assessed under the MHR, as the ultimate step towards grant of a visa. Consequently, failing a visa applicant on the basis of health, which in the case of applicants for permanent residence means denying all family members a visa, is a loss to Australia in terms of the demonstrated financial and skills benefits that all migrants bring to the nation. Migrants are a financial asset to the community and rejecting prospective migrants and their families based on disability or a health condition means economic loss to the nation.

Furthermore, Welcoming Disability submits that the exemption as currently drafted has adverse human rights impacts beyond the visa applicants and their families who are directly impacted. By rendering permissible an MHR that includes the notion of ‘significant cost to the community’, measured purely in terms of public expenditure, it perpetuates stigmatising, archaic and discriminatory ideas that people with disability in general are a burden to society and are not entitled to equal treatment before the law. The everyday human rights impacts of these kinds of discriminatory assumptions are borne by the Australian disability community.

Welcoming Disability has long argued elsewhere^14 that the MHR is at odds with the policy objectives of the DDA in that the MHR treat people with disability and health conditions as a net burden on ‘the community’. Welcoming Disability considers this approach to be archaic and out of step with broader community expectations embodied in policies in all state disability and equal opportunity legislation, and relevantly, in the Federal Government’s own DDA.

Every visa applicant should have the right to argue their case but Australia’s migration regulations explicitly assume disability and health conditions are a net cost burden to the wider Australian community.

The overbroad nature of the DDA’s section 52 exemption facilitates an MHR that adversely impacts people with disability and health conditions and their families in Australia, sending a clear message that people with disability in general are an unwanted burden - invisibilising their significant contributions to our society and economy and presenting them as nothing more than a cost that is inflicted on the rest of the community.

^14 Welcoming Disability, submission to the Department of Home Affairs Review of the Migration Health Requirement and Australia’s visa Significant Cost Threshold (SCT), November 2023; available at https://alhr.org.au/wp/wp-content/uploads/2023/11/Reduced-Welcoming-Disability-Submission-to-DoH-2023-ReviewF4.docx.pdf

13

Containing public expenditure on health and community services

The Department of Home Affairs website^15 notes that

The Significant Cost Threshold (SCT) is the underpinning policy to ‘contain public expenditure on health care and community services’ as outlined in the Migration Regulations 1994;

And that

Significant cost is interpreted as a cost that is ‘higher than the average health and community services cost for an Australian’.

The current SCT methodology is based on annually published Australian Institute for Health and Welfare (AIHW) reports to calculate the amount spent on the ‘average’ Australian per capita on health and welfare:^16

  • The latest AIHW report on health notes that the health expenditure in 2022-23 was $9,597 per person^17
  • Welfare spending in 2021-22, the latest available figure, was $8,245 per capita,^18

thus the annual public amount expended for both health and welfare on Australians per capita is $17,842.

When assessing costs for a provisional or permanent visa, costs are assessed over ten years. If an applicant’s cost exceeds the SCT of $86,000 ($8,600 per annum, although this cost is never assessed on an annual basis) then they will fail to meet the MHR. However, based on AIHW figures, costs for health and welfare for the average Australian over ten years are $178,420, an amount more than double the SCT.

This cannot be seen as ‘higher than the average health and community services cost for an Australian’. Visa applicants with disability or health conditions will fail to satisfy Australia’s MHR if the assessed predicted health and welfare costs over 10 years exceed the SCT of $86,000, whereas the annual public amount expended for both health and welfare on Australians per capita over 10 years is more than double that figure, in the region of $178,420 per person.

Welcoming Disability therefore rejects the argument that the MHR, as embodied in the SCT, is a reasonable and proportionate limitation on the rights of people with disability to live free from discrimination. Indeed, the discriminatory outcomes are so unreasonable and disproportionate that they move well beyond any legitimate aim to control public expenditure on public health.

Consequently, the section 52 DDA exemption to the Migration Act disproportionately limits the human rights of people with disability to non-discrimination and should be amended.

^15 Department of Home Affairs, Protecting health care and community services, Significant health care and community service, available at https://immi.homeaffairs.gov.au/help-support/meeting-our-requirements/health/protecting-health-care-and-community-services
^16 Department of Home Affairs, Review of the Migration Health Requirement and Australia’s visa Significant Cost Threshold (SCT) (Final Report), April 2024 (Review of the Migration Health Requirement and SCT) https://www.homeaffairs.gov.au/reports-and-pubs/PDFs/migration-health-requirement-review-australias-visa-sct.pdf
^17 Australian Government. AIHW. Health expenditure Australia 2022-23, updated 20 November 2024, available at https://www.aihw.gov.au/reports/health-welfare-expenditure/health-expenditure-australia-2022-23/contents/about
^18 Australian Government. AIHW. Welfare expenditure, 7 September 2023, available at https://www.aihw.gov.au/reports/australias-welfare/welfare-expenditure

14

Recommendation 1:

Section 52 should be amended such that the extent of discrimination it renders legally permissible is narrowed while still balancing the policy consideration of protecting public health.

Welcoming disability recommends that section 52 be amended as follows:

Divisions 1, 2 and 2A do not:

(a) affect discriminatory provisions pertaining to the need to protect public health and safety in: (i) the Migration Act 1958; or (ii) a legislative instrument made under that Act; or (b) render unlawful anything pertaining to the need to protect public health and safety that is permitted or required to be done by that Act or instrument.

To be clear, any provisions in the Migration Act 1958 or to any legislative instrument or act made or performed under that Act pertaining to

  • any need to contain public expenditure on health care and community services, or
  • the need to safeguard the access of Australian citizens and permanent residents to healthcare and community services that are in short supply

should remain subject to all of the provisions of the DDA.

This would require in the first instance a review of the Migration Regulations and Policy to remove clauses 1(c)(i) and 1(c)(ii) and all references to clauses in Pics 4005 and 4007 in schedule 4 to the Migration Regulations. Further, all other areas of the Regulations, Migration Act and Policy would need to be reviewed for consistency in light of this.

Australia’s International Human Rights Law Obligations

Australia is a party to the seven core United Nations human rights treaties and has agreed to respect, protect and fulfil people with disability’s human rights to equality and non-discrimination, as expressed in:

  • articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR)^19
  • article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)^20
  • article 2 of the Convention on the Rights of the Child (CRC)^21
  • articles 3, 4, 5, 12 and 18 of the Convention on the Rights of Persons with Disabilities (CRPD).^22

Convention on the Rights of Persons with Disabilities (CRPD)

Australia ratified the CRPD in 2008. Australia became a State Party to the Optional Protocol to the Convention on the Rights of Persons with Disabilities^23 in 2009. As noted by the Auditor General in 2006 -

^19 United Nations, International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
^20 United Nations, International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).
^21 CRC (N.5)
^22 CRPD (N.4)
^23 United Nations, Optional Protocol to the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2518 UNTS 283 (entered into force 3 May 2008) (‘OP-CRPD’).

15

2007, when considering the administration of the Health Requirement of the Migration Act 1958, as a party to the CRPD, Australia has an obligation to take all appropriate measures to modify or abolish existing laws and regulations that constitute discrimination against persons with disability.^24

The continued existence of the overbroad section 52 exemption in the DDA enables discrimination against persons with disability, and violates this overarching obligation.

Equality and non-discrimination

Exempting the Migration Act from the DDA in such an overbroad manner interferes with Australia’s CRPD Article 5 obligations to:

a. recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law; b. prohibit all discrimination on the basis of disability and guarantee to persons with disability equal and effective legal protection against discrimination on all grounds; and c. take all appropriate steps to ensure that reasonable accommodations are provided in order to promote equality and eliminate discrimination,

pursuant to Article 5, specific measures which are necessary to accelerate or achieve the de facto equality of persons with disability are not considered discrimination under the CRPD.

Liberty of Movement and Nationality

The DDA’s section 52 exemption enables Australia’s migration laws to disproportionately and specifically interfere with Australia’s CRPD Article 18 obligations to:

recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities:

a. have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability; b. are not deprived, on the basis of disability, of their ability to obtain, possess and utilise documentation of their nationality or other documentation of identification, or to utilise relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement; c. are free to leave any country, including their own.

In Welcoming Disability’s view, Article 18 does not, in and of itself, give rise to the right for a person with disability to migrate to Australia. However, the current health requirement enshrined in the Act and Regulations does violate article 5 of the CRPD as a law which does not treat people with disability on an equal basis with others.

^24 The Auditor-General, ‘Administration of the Health Requirement of the Migration Act 1958’, Audit Report No. 37 2006-2007, Performance Audit, Australian National Audit Office

16

Australia’s Interpretative Declaration

The Australian Government has lodged a caveat to Article 18 of the CRPD which pertains to migration. This caveat or Interpretive Declaration reads in part:

Australia recognises the rights of persons with disability to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others. Australia further declares its understanding that the Convention does not create a right for a person to enter or remain in a country of which he or she is not a national, nor impact on Australia’s health requirements for non-nationals seeking to enter or remain in Australia, where these requirements are based on legitimate, objective and reasonable criteria [emphasis added].^25

Welcoming Disability notes that the notion of what constitutes ‘legitimate, objective and reasonable criteria’ is not defined. This renders it very difficult to determine if the limitation on people’s human rights is proportionate and, as such, it requires further interrogation.

Australia’s Interpretative Declaration to Article 18 leaves the Australian Government position clearly out of step with the scope and intent of Article 5 of the CRPD.

United Nations Committee on the Rights of Persons with Disabilities

The inconsistency of Australia’s MHR with its CRPD obligations has not escaped international scrutiny. In its 2019 Concluding Observations on the combined second and third periodic reports of Australia, the United Nations Committee on the Rights of Persons with Disabilities (Committee) noted, in relation to Article 18:

Liberty of movement and nationality (art. 18) 35.

The Committee is concerned about:

a. Migration and asylum legislation, such as the Migration Act 1958 and the health requirement in the Migration Regulations 1994, which allows for discrimination against persons with disabilities in asylum and migration procedures; b. The Disability Discrimination Act 1992 providing an exemption to certain provisions within the Migration Act 1958, which results in the exclusion of persons with disabilities; c. The 10-year qualifying period for migrants with a non-permanent visa to access the Age Support Pension and the Disability Support Pension;^26

The Committee recommended that Australia:

a. Review and amend its migration laws and policies to ensure that persons with disabilities do not face discrimination in any of the formalities and procedures relating to migration and asylum; and, especially

^25 Australia, Interpretative Declaration to the Convention on the Rights of Persons with Disabilities, signed 17 July 2008, [2008] ATNIF 15, [2008] ATS 12 (entered into force 16 August 2008) (N.5).
^26 Committee on the Rights of Persons with Disabilities, Concluding Observations on the Combined Second and Third Periodic Reports of Australia, UN Doc CRPD/C/AUS/CO/2-3 (15 October 2019), p.10 paragraph 35.

17

b. Remove the exemption in the Disability Discrimination Act 1992 to certain provisions of the Migration Act 1958.^27

Convention on the Rights of the Child (CRC)

Welcoming Disability recognises the intersectional and interdependent nature of the human rights violations experienced by people with disability and therefore also notes Australia’s relevant obligations under the CRC.

Australia ratified the CRC in 2009, accepting a binding, universally agreed set of non-negotiable human rights standards and obligations applicable to all children. The CRC protects children’s rights by setting standards in health care, education, and legal, civil and social services. The four core guiding principles of the CRC are:

  • non-discrimination (Article 2)
  • devotion to the best interests of the child (Article 3)
  • the right to life, survival and development (Article 4)
  • and respect for the views of the child (Article 28).

Right to non-discrimination

Article 2 of the CRC requires the Australian Government, including the Minister for Immigration and the Department of Home Affairs to:

a. ensure that all of the rights set out within the CRC rights are protected and upheld within its jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status; and b. take all appropriate measures to ensure that children are protected against all forms of discrimination or punishment on the basis of their status or the status of family members.

Best Interests of the child

Article 3 of the CRC requires the Australian Government, including the Minister for Immigration and the Department of Home Affairs, to ensure that:

in all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

Rights to survival, development and education

Relevantly, given the reference above regarding the inclusion of ‘special’ or supported education as a ‘community cost’ within the MHR:

  1. Article 4 of the CRC requires the Australian Government, including the Minister for Immigration and the Department of Home Affairs to ‘ensure to the maximum extent possible the survival and development of the child’.

^27 Ibid paragraph 36.

18

  1. Article 28 of the CRC recognises education as a legal right to every child ‘on the basis of equal opportunity’. Further, Article 29 of the CRC reflects Australia’s agreement that the education of children must be ‘directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential’.

Right to participation

Welcoming Disability notes that the principle of respect for the views of the child is often neglected in Australia’s consideration of its CRC obligations. Pursuant to Article 12 of the CRC, the Australian Government, including the Minister for Immigration and the Department of Home Affairs, must assure to all children capable of forming their own views the right to express those views freely in all matters affecting the child, with the view of the child being given due weight in accordance with the age and maturity of the child.28

Welcoming Disability submits that aspects of Australia’s current application of the MHR are significantly inconsistent with its CRC obligations to:

  • protect children from discrimination on the basis of their disability or health status;
  • protect children’s rights to development and education;
  • ensure that the best interests of the child are a primary consideration in the design and application of Australia’s MHR; and
  • ensure that the views of impacted children are heard and given due weight in accordance with the maturity of the child.

Recommendation 2

Further to Recommendation 1 above that section 52 be amended, we recommend that the Federal Government review and remove:

  • Australia’s Interpretative Declaration on Article 18 of the Convention on the Rights of Persons with Disabilities;
  • all formalities and procedures relating to migration and asylum, in order to ensure compliance with Australia’s obligations under:
    • the Convention on the Rights of Persons with Disabilities
    • the Convention on the Rights of the Child
    • the remaining core United Nations human rights treaties to which Australia is a State Party.

The remainder of this Submission addresses other issues based on the assumption that section 52 is amended as suggested above, making the Department of Home Affairs (the Department) a stake holder.

6. Issues Part 1 Updating understandings of disability and disability discrimination

Recommendations 4.33 and 4.34 – Interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities

28 CRC Article 12 (N.5)

Consultation question 10: Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?

Recommendation 3:

The objects of the DDA should be amended to explicitly state that one of the purposes of the Act is to incorporate Australia’s binding international legal obligations under the Convention on the Rights of Persons with Disabilities into Australian domestic legislation.

Consultation question 11: Should the Disability Discrimination Act be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?

Recommendation 4:

The DDA should be amended to specify that international human rights law, including but not limited to treaties and conventions and the judgments of domestic, foreign and international courts and tribunals and treaty monitoring bodies relevant to a human right may be considered in interpreting the DDA’s statutory provisions.

7. Issues Part 2 Positive duty to eliminate discrimination

Recommendations 4.27 and 4.28 – Positive duty for duty holders to eliminate discrimination

Question 12: If there was a positive duty in the Disability Discrimination Act, who should it apply to?

A positive duty would require the duty holder to take reasonable and proportionate measures to eliminate, as far as possible, discrimination against people with disability and would enable a third party (the Australian Human Rights Commission) to act if the duty holder is not taking appropriate steps to address discrimination.

Recommendation 5:

Further to Recommendation 1 above, the Department of Home Affairs (the Department) should be re-cast as a positive duty holder.

Consequently, the Department should be required to eliminate all elements of discrimination from the Migration Act and Regulations, all legislative instruments which stem from the Act and Regulations, all aspects of Migration Policy, and all acts undertaken on behalf of the Department.

This positive duty to remove discrimination should be reviewed by the Australian Human Rights Commission.

8. Issues Part 4 Improving access to justice

Welcoming Disability notes that the Recommendations and Issues raised here by the DRC relate to offensive behaviour and vilification procedures.

However, improving equity under all relevant laws in adherence with Australia’s international human rights law obligations, including the legislation embodied in the Migration Act, Regulations and associated instruments, should be part of this process of improving access to justice.

Currently, review rights under the Migration Act, through seeking review of a Department’s decision before the Administrative Review Tribunal (ART), or ultimately through Ministerial Intervention, are limited, expensive, circumscribed by the Regulations and not universally available.

Recommendation 6:

An avenue of complaint or appeal under the DDA should be made available to all those who experience discrimination under the Migration Act, Regulations or associated instruments, and by those implementing the Act.*

Welcoming Disability submits that this is a matter of natural justice and equity under the law.

9. Issues Part 6 Modernising the DDA

Disability action plans Issues:

Duty holders may voluntarily prepare and implement an action plan under the DDA. The purpose of an action plan is for organisations to set out a strategy to address practices which might result in discrimination against people with disability, as well as implementing specific policies and practices to promote the rights of people with disability. We have heard that there may be limitations to the effectiveness of action plans as there is no requirement for them to be updated over time or minimum standards for what they should include. We are seeking your views on whether guidance or minimum requirements could improve the effectiveness of disability action plans.

With the Migration Act currently exempt from the DDA under section 52, there is no avenue for enforcing or requiring action plans put forward in response to government reviews or inquiries.

There are numerous examples of recommendations accepted or considered by the government in the migration and disability sphere, where there is no accountability and no opportunity for follow through on promised outcomes.

Example 1: Enabling Australia: Inquiry into the Migration Treatment of Disability.

In 2010, the Joint Standing Committee on Migration tabled its report on the Inquiry into the Migration Treatment of Disability entitled Enabling Australia: Inquiry into the Migration Treatment of Disability.p29

In November 2012, its Australian Government published its Response,p30 in which it accepted a number of recommendations, including

  • all those related to need to improve transparency and information resources with regard to health policy;
  • reviewing the operation of the ‘one fails all fail’ criteria under the Regulations;
  • and supporting in principle the investigation of a net benefit approach for all visa applicants.

However, to date there has been:

  • very little improvement in public access to health policy resources, which is currently confined to those members of the public who can physically access the State Library in Brisbane, Sydney and Melbourne;
  • no evidence of a review of the cost-benefit analysis for all visa applicants;
  • no evidence of meaningful review of the ‘one fails all fail’ criteria in the Regulations.

Example 2: Report on the Review of the Migration Health Requirement and Australia’s visa Significant Cost Threshold

In 2024, the Australian Government released its Report on the Review of the Migration Health Requirement and Australia’s visa Significant Cost Threshold (SCT),p31 comprising nine findings and eleven proposed actions. Five of those actions were noted as either ‘requiring government consideration’ or ‘to be reviewed by the Department’. There is however no mechanism available to require the government to report publicly on any outcomes or reviews.

The Department of Home Affairs is not a duty holder under the DDA because of the section 52 exemption as currently drafted. Consequently, the examples of proposed actions mentioned above are not ‘action plans’ under the DDA. If section 52 were amended as Welcoming Disability recommends above, and the Department of Home Affairs became a positive duty holder, then Welcoming Disability would be more optimistic regarding the possibility of public scrutiny of proposed changes and reviews.

However, this would also require the DDA to have some oversight into action plans.

p29 Joint Standing Committee on Migration, Enabling Australia: Inquiry into the Migration Treatment of Disability (Parliament of Australia, June 2010). Available at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Completed_Inquiries/mig/disability/report

p30 Australian Government, Australian Government Response to the Joint Standing Committee on Migration Report: Enabling Australia—inquiry into the Migration Treatment of Disability (November 2012). Available at: <https://www.homeaffairs.gov.au/reports-and-pubs/files/joint-standing-comm-enabling-australia.pdf>

p31 Review of the Migration Health Requirement and SCT (N.15)

Recommendation 7:

Action plans prepared by duty holders under the DDA should be required to be updated overtime, and subject to guidance and minimum requirements. In particular:

  1. the time frames for implementation of action plans under the DDA be introduced and monitored;
  2. outcome statements should be published as part of action plans;
  3. an external body such as the Australian Human Rights Commission should oversee the implementation of action plans under the DDA.

10. Conclusion

The exemption of the Migration Act 1958 (Cth) under section 52 Disability Discrimination Act 1992 (Cth) is currently drafted in overbroad terms that disproportionately limit the right of people with disability to non-discrimination. This directly enables Australia’s migration regulations to explicitly and arbitrarily assume disability and health conditions are a net cost burden to the wider Australian community, ignoring individual and familial potential for significant contributions to our communities. This is discriminatory, archaic and degrading. Further, it is inconsistent with the approach that Australia should be adopting as a party to the CRPD and the CRC.

The right to live free from discrimination on the basis of disability or health status is a fundamental human right belonging to every adult and child.

Otherwise eligible individuals and families, looking to make their contribution to Australia, may be refused visas or excluded because they have a disability or an immediate family member with a disability.

Welcoming Disability asks this Review to consider the issues raised within this submission. It is time to bring Australia’s Migration Health Framework into line with current understandings of people with disability and health conditions as full and valuable members of society.

Welcoming Disability therefore calls for the DDA to be amended in order to narrow the exemption of the Migration Act 1958 (Cth) under section 52 Disability Discrimination Act 1992 (Cth) to preclude reference to cost to the community or prejudice to access to community or health service, while maintaining a commitment to protect Australia’s public health.

Further, we recommend that the Department of Home Affairs should, therefore, become a positive duty holder under the DDA and hence be obliged to take reasonable positive measures to eliminate discrimination against people with disability.

The objects of the DDA should also be amended to explicitly state that one of the purposes of the Act is to incorporate Australia’s binding international legal obligations under the Convention on the Rights of Persons with Disabilities into Australian domestic legislation.

An avenue for appeal should be created under the DDA to improve access to justice for people with disability who experience discrimination on the basis of disability or health under the Migration Act.

Disability action plans prepared by duty holders under the DDA should include outcome statements and time frames, and be subject to monitoring of implementation by an external body.

Should you have further questions relating to our Submission, we are available for further consultation.

Yours sincerely,

redacted
CEO
Down Syndrome Australia
redacted

redacted
Vice President and Chair of Children’s Rights,
Australian Lawyers for Human Rights
redacted

redacted
Co-Chair of Disability Rights
Australian Lawyers for Human Rights
redacted

redacted
Welcoming Disability
Campaign Migration Policy Advisor
redacted

Any information provided in this submission is not intended to constitute legal advice, to be a comprehensive review of all developments in the law and practice, or to cover all aspects of the matters referred to. Readers should take their own legal advice before applying any information provided in this document to specific issues or situations.