Suggestions on aligning the Disability Discrimination Act with the Convention on Rights of Persons with Disabilities

Dr. Sophie R. Reid-Singer

The System Works: Suggestions on how to align the Disability Discrimination Act with the Convention on Rights of Persons with Disabilities, written by a very stubborn disabled woman.

Figure 1 Screenshot of author’s first NDIS plan ‘medium to long-term goals’.

Executive Summary

This submission partially fulfills the requirements of a Juris Doctor at the University of Melbourne, as the final hurdle requirement for elective course Human Rights Law and Practice (LAWS50049).’ Secondly, it offers formal submission to the Attorney General’s Department (‘AG’) in response to the public consultation on the Australian Government’s review of the Disability Discrimination Act (‘DDA’).”

Despite decades of advocacy, the Disability Royal Commission (‘DRC’) and assent to the Convention on the Rights of Persons of Disabilities 2006 (‘CRPD’), the DDA remains fundamentally misaligned with human-rights obligations. The weak objects of the DDA to eliminate discrimination ‘as far as practicable’ and the statutory authority exemption in s 47 shield Australian disability policy from scrutiny. I argue that tightening eligibility for the Disability Support Pension’ (‘DSP’) and the National Disability Insurance Scheme (‘NDIS’),° invariably contribute to systemic discrimination at large and are incompatible with human rights principles. Due to the statutory authority exemption under s 47 of the DDA, there are no meaningful domestic avenues to challenge ‘testimonial injustice’’ experienced by disabled peoples — where our claims, supported by our health professionals, families and community, are routinely disbelieved or dismissed due to ableist identity prejudice. In absence of a national human-rights framework, the DDA should align holistically with the CRPD to ensure disabled peoples live with autonomy under state care.

My personal stake in this comes from ongoing barriers in proving and maintaining eligibility for both DSP and NDIS, despite clear medical evidence and personal testimony. * The three recorded Centrelink interactions appended to this submission demonstrate the complaint process itself has become a site of exclusion. I am just one very upset disabled lady.’ I write as an unrepresented individual. Understandably, I am not equipped for addressing the larger societal concerns of the Review.’® Nonetheless, I offer this submission to contribute meaningfully on the following points:

Recommendations

Amend the definition of disability in the DDA to mirror art 1 of the CRPD (disability as an evolving concept resulting from the interaction between impairment and attitudinal/environmental barriers).
Repeal s 47 of the DDA in its entirety so that acts done under statutory authority (including DSP and NDIS access rules) are no longer exempt from anti-discrimination law.
Progressively realise CRPD rights, particularly the rights to access to justice (art 13), adequate social protection (art 28) plus work and employment (art 27) by shifting the DDA from a reactive complaints-based model to a proactive rights-based framework.

Until these systemic inequalities are addressed: Australia’s domestic law will continue to legitimise the very discrimination the CRPD was designed to eliminate.

’ Melbourne Law School, LAWS50049: Human Rights Law and Practice (University Handbook, 2024) https://handbook.unimelb.edu.au/2024/subjects/laws50049.

? Disability Discrimination Act 1992 (Cth) (‘DDA’); Attorney-General’s Department. ‘Disability Discrimination Act 1992 Review Issues Paper’ (Report, 2025) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti discrimination/australias-anti-discrimination-law/review-disability-discrimination-act> (‘Issues Paper’).

3 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Letters Patent (4 April 2019, amended 13 September 2019, 13 May 2021) and Final Report (29 September 2023). ((DRC’)

4 Convention on the Rights of Persons with Disabilities, adopted 12 December 2006, 2515 UNTS 3 (entered into force 3 May

(“CRPD’); DRC Report, rec 4.33, 4.34.

Social Security Act 1991 (Cth), s 94.

® National Disability Insurance Scheme Act 2013 (Cth).

7 Miranda Fricker, ‘Testimonial Injustice’ in Epistemic Injustice: Power and the Ethics of Knowing (Oxford University Press, 2007), 9-29.

8 Erin Semmler, ‘Disability Support Pension Centrelink Process Dehumanising and Degrading, Recipients Say’ (online, 21 October 2022) ABC News <https://www.abc.net.au/news/2022-10-2 1/disability-support-pension-centrelink-dehumanising

degrading/101526616>. (‘Disability Support Pension Centrelink Process’)

° My preference to calling myself disabled is a personal choice. In this paper, I refer to others with lived experience of disability (in its various imaginations) as a matter of convenience, not presumption.

’0 Disability Royal Commission, Final Report (Report, 29 September 2023) recs 4.23-4.34, 7.2, 7.26, 8.19. (‘DRC Report’)

Context

Disability discrimination, as defined by the Australian Human Rights Commission (‘HRC’): ‘occurs when a person is treated less favourably, or not given the same opportunities as others in a similar situation because of their disability.’!! Section 32 of the DDA makes it unlawful to contravene one of the three ‘Disability Standards’ set out by the AG which pertain to (i) accessible public transport standards; (11) education standards, and; (iii) access to premises — buildings standards.‘? The Disability Standards do not apply to disability services, which are instead guided by the National Standards for Disability Services.“ Under the DDA, discrimination can be direct (where the less-favourable treatment is because of disability), or indirect (where policy or requirement applies to everyone but disproportionately disadvantages disabled peoples).’* While the Act imposes obligations to make reasonable adjustments, exceptions apply where adjustment would cause ‘unjustifiable hardship’ or where a person can’t perform the inherent requirement of a role, even with adjustments.!°

The DRC investigated incidents of violence, abuse, neglect and exploitation of people with disability to improve protection, reporting, investigating and response practices, ultimately aiming to promote a more inclusive society supporting their independence.‘° The government tabled the Final Report on 29 September 2023, which included 172 recommendations within the federal government’s primary or shared responsibility (50 of 222 total recommendations within state or territory concern).’’ The government published its reply to recommendations on 30 July 2024 which ‘in principle’ accepted 15 recommendations related to the DDA.’®

The federal government has committed $6.9 million to the reviewing and modernising the DDA. To put this in perspective, the Victorian government has put aside $13 million to address risks related to machete-related violence in the community — a far narrower issue.’’ In contrast, the DRC cost $599.3 million.” This raises doubts about whether $6.9 million is adequate to meaningfully address the issues affecting the whole of the disability community.

That being said — there is little else that could be said requiring more research or investigation into incidents of disability discrimination that has not already been arduously testified by advocates and stakeholders.”! In the Issues Paper, the AG acknowledges ‘the toll having to restate the same problems can take, and the trauma that can come from repeatedly sharing experiences of discrimination.’”” The evidence is clear, something must change.

"| HRC, ‘Disability Discrimination’ (Web Page, 2024) <https://humanrights.gov.au/our-work/disability-rights/disability-

discrimination>.

2 DDA (n 2), s 32; Issues Paper, 9.

’3 National Standards for Disability Services (online, 11 August 2025) https://www.health.gov.au/resources/collections/national-standards-for-disability-services-resources.

’4 Australian Human Rights Commission, ‘Complaints under the Disability Discrimination Act’ (Web Page) https://humanrights.gov.au/complaints/complaints/complaints-under-disability-discrimination-act.

’S Tbid.

‘6 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Public Hearing: Violence, Abuse, Neglect and Exploitation of People with Disability (Web Page, 2020) https://www.royalcommission.gov.au/rounds/violence-abuse-neglect-and-exploitation-people-disability.

’7 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report (Report, 29 September 2023) https://www.royalcommission.gov.au/publications/final-report.

’8 Australian Government Department of Health and Aged Care, Australian Government Response to the Disability Royal Commission (Web Page, 30 July 2024) <https://www.health.gov.au/resources/publications/australian-government-response-to the-disability-royal-commission?language=en>.

’° Matthew Elmas, ‘Claim Machete Bins Cost the Government $325,000 Is False’ Mountain Views Star Mail (online, 11 September 2025) <https://mountainviews.mailcommunity.com.au/news/2025-09- 1 1/claim-machete-bins-cost-the-government 325000-is-false/>.

20 ‘Disability Royal Commission: Facts and figures’ (Factsheet, 2023) https://www.health.gov.au/resources/publications/disability-royal-commission-facts-and-figures?language=en.

2! The volume of participation in the DRC underscores that the evidence base is not only robust but overwhelming. To date, the DRC has generated: 7944 written submissions from individuals and organisations; 17824 phone enquires; 14 Issues papers published; 710 responses to Issues papers received, and; 1785 private sessions held. ‘Home’, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Web Page, 29 September 2023) https://disability.royalcommission.gov.au/.

2 Issues Paper (n 2), 17.

(A) Alignment of DDA with CRPD Point A concerns rec 4.33 and 4.34 of the DRC Report, which concerns the consistency between the DDA and CRPD. The 1992 DDA offers three protections: to eliminate discrimination, ‘as far as possible’; ‘to ensure, as far as practicable,’ the rights of people with disabilities to equality before the law, and; ‘to promote the recognition and acceptance’ within the community that people with disabilities have the same fundamental rights as everyone else.23 1988 Australian Bureau of Statistics data (which relied on personal assessment) evidence that prior to the DDA, 13.6% of the population claimed their impairment impeded capacity for self-care, mobility, spoken-communication, schooling or employment.24 The lived reality of discrimination isn’t captured by prevalence alone. Before the DDA, everyday life was full of barriers across education, employment, transport, housing and public space were designed in ways which kept disabled peoples

meaningfully  participating  in  society.25 Beyond  structural  barriers,  personal  testimony  highlights

entrenched social attitudes (ranging from patronising and paternal behaviours to negative stereotypes) which ‘suggest a huge social problem that is unlikely to be completely solved by legislation.’26 Regardless of severity of impairment, poverty emerges as a near-universal experience for disabled peoples.27 The DSP and NDIS are two sides of the same coin paid forward to address poverty. The DSP, a payment under s 94 of the Social Security Act 1991, provides income support for those excluded from the labour market and concessions (eg, healthcare cards, reduced utility bills). Eligibility is strict: in addition to a permanent diagnosis, applicants must score a minimum of 20 points on the ‘Impairment Tables’28 (‘Tables’) which exclude people with fluctuating impairment or residual work capacity. Even after permanence is proved, autonomy and dignity are undermined by repeated reassessments while ‘programs of support’ create distress and administrative burden. The NDIS is not a welfare payment, and access to DSP does not automatically confer access. NDIS funds ‘reasonable and necessary supports’ for disabled peoples with permanent and severe impairment on the pretence of increasing independence and social participation. Out-of-pocket expenses which would otherwise push households into poverty are reduced by covering costs for assistive technology, therapies and personal care (eg, support work). Supports aim to build capacity for education and employment, which aim to improve long-term economic security. People with episodic or multiple interacting conditions are excluded from access because eligibility is contingent on proving permanence and functional impact. Recent reforms go further, removing access for entire ‘classes’ of disability such as psychosocial impairment and autism. Under the CRPD, states must respect, protect and fulfill rights for disabled peoples. This includes dismantling systemic barriers and ensuring access to social security (DSP) and community inclusion programs (NDIS). Rather than proactive measures which guarantee equality and inclusion, the DDA focuses on prohibiting discrimination ‘as far as possible’. Cuts and stricter for DSP and NDIS eligibility have undermined their role in alleviating poverty and protecting human right, forcing many disabled peoples back into isolation and hardship. This attrition highlights a critical weakness: the DDA lacks

enforceable  obligations on government  to  maintain  adequate socioeconomic  protections,  a  flaw

compounded by the s 47 statutory authority exemption.

23 DDA (n 2), s 3. 24 Australian Bureau of Statistics, Disabled and Aged Persons Australia (Cat. No. 4118.0, 1988). 25 Melissa Conley Tyler, ‘The Disability Discrimination Act 1992: Genesis, Drafting and Prospects’ (1993) 19 Melbourne University Law Review 211, 214. 26 Ibid. 27 Ibid. 28 Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth). (‘Tables’)

(B) Point B concerns the scope of exemptions”? under s 47 of the DDA*?.

The Issues Paper invites submission concerning the ‘10 permanent exemptions [under the DDA] which set out when discrimination against people with disability is not unlawful.’! Acts done under statutory authority, should not be exempt from accountability.” I reject the premise that the rights prescribed under the DDA are balanced proportionally with ‘competing government public policy and the interests of broader society.’*> Part of realising the ‘full and effective participation’ of disabled peoples means encouraging that population to receive appropriate supports.*4 The exemption under s 47 of the DDA shields discrimination practices done under statutory authority, penalising disabled peoples seeking access to the DSP (as an economic protection) and the NDIS (as a measure to promote community inclusion).

Aligning the DDA with the CRPD is a legal and moral duty. Unlike Australia’s history of exclusion, the CRPD was drafted with ‘the highest level of participation by representatives of civil society, overwhelmingly that of persons with disability’.*°> Most of this paper is dedicated to tracing the historical exclusion of disabled peoples from lawmaking — which is crucial to appreciating the enduring ambivalence shaping contemporary policy.

History towards establishment of DDA

Historically, disabled peoples were excluded from drafting of laws and policies which concerned them. The prevailing ideology during the 19“ century of the charity model frames disabled people as passive dependents of the auspices of government* and religious institution.” Under the guise of benevolence, several asylums were created in each Australian colony to ostensibly care for the old or invalid, yet such facilities operated more like a carceral institutions where residents were isolated, surveilled and stripped of autonomy.° In absence of an adequate community alternative, many families surrendered their dependants into state care because they were unable (or unwilling) to care for them at home, and asylums promised ‘a brighter future with specialised medical services and developmental programs.’’ Public trust faltered as media-outrage exposed overcrowding and diminishing conditions.°

Federation followed the recession of the 1890s.! After ratification of the 1901 Australian Constitution (‘Constitution’),” meaningful reform towards full citizenship for disabled people remained elusive for another century. Section 51(xxiii) of the Constitution confers legislative power to the Cth in respect to ‘invalid and old-age pensions.’? This provision reflects a narrow welfare function rather than a broader commitment to rights-based protections. Under this power, the Deakin government, following recommendation of the Royal Commission into Aged Pension 1906,“ established a nation-wide provision of money through the Jnvalid and Old-Age Pensions Act 1908.*° This marked a shift from the previous

° Issues Paper (n 2), 76.

30 DDA (n 2), s 47.

3! Issues Paper (n 2), 75.

32 See Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8(1) Human Rights Law Review, 4. (‘Out of Darkness into Light?’)

33 Thid.

34 Committee on the Rights of Persons with Disabilities, General comment No. 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, UN Doc CRPD/C/GC/7 (9 November 2018, adopted 21 September 2018) paras 6-7.

35 Kayess and French, ‘Out of Darkness into Light?’ (n 32), 4.

36 For an asylum funded under statutory Act, see Benevolent Asylum Wards Act 1861 (QLD); Queensland Government, ‘Index to Dunwich Benevolent Asylum 1859-1927’ (online, June 2022) <https://www.data.qld.gov.au/dataset/dunwich-benevolent asylum-index-1859-1927/resource/8af229f9-8695-492b-9425-8e9576f644f5>.

37 For asylums funded under religious charity, see Terri McCormack, State Library of New South Wales ‘Benevolent Society and Asylum’ (Web page, 2021) https://dictionaryofsydney.org/entry/benevolent_society_and_asylum.

38 See Corinne Manning, ‘Imprisoned in State Care? Life Inside Kew Cottages 1925-2008’ (2009) 11(1) Health and History 149.

3° Manning, C. Bye-bye Charlie: Stories from the vanishing world of Kew Cottages (University of NSW Press, 2007), 29.

40 “Old Age Pensions’, The Colac Herald (Vic) (News article, 2 March 1906), https://trove.nla.gov.au/newspaper/article/87338201; Lorna Hallahan, Disability in Australia: Shadows, Struggles and Successes (DRC, 2 November 2021), 3, 37-8. (‘Shadows, Struggles and Successes’)

4! Thid, 44.

® Australian Constitution 1901 (Cth) (‘Constitution’).

43 Tbid, s 51 (xxiii).

“4 Royal Commission on Old-Age Pensions, Final Report (27 February 1905-19 June 1906, III 1435-1805).

8 Invalid and Old-Age Pensions 1908 (Cth).

vouchers and in-kind donations tied to residence in the overflowing asylums to direct financial assistance,° although women were excluded from payment until 1910.47 The design of Australia’s ‘old-age’ and ‘invalid’ pensions were unique, in that they were non-contributory, non-discretionary and means tested.® Yet, access remained restrictive. Until post-war reforms support was confined to the ‘deserving and aged poor’.’? The old-age pension, introduced for those over 60, was undermined by the realities that the life expectancy at the time was 55 for men and 59 for women.? Concerning the invalid pension, only persons aged over 16 who were permanently incapacitated from working due to accident or invalidity were eligible.>! ‘Aliens’, ‘Asiatics (except those born in Australia)’ and ‘aboriginal natives of Australia, Africa, the Islands of the Pacific or New Zealand’ were excluded from the invalid pension.” Ultimately, discretion was left to the registrar to exclude anyone not ‘of good character’.? Applicants were also disqualified if they had income or property exceeding the limits set for old-age pension,™ they had relatives who ‘adequately maintain them’,®° or if there was suspicion they have deliberately deprived themselves of income or property to qualify.*°

Attitudes shifted only after the emergence of the ‘broken bloke’ — Great War veterans.°’ Unlike those confined to institutions, returned servicemen were publicly visible and framed as victims of their national sacrifice.°* While political mobilisation by veterans’ groups helped redirect policy away from mere containment toward rehabilitation, implementation was uneven, particularly for Indigenous servicemen.>? This rhetoric masked economic imperatives: the establishment of the Reparation Commission sought to return men as ‘natural breadwinner status’.°’ In reality, many relied on charity and the unpaid labour of their wives and families. By WWII, uneven access to social security had failed to address institutionalisation, so the Commonwealth Rehabilitation Scheme was founded in 1948 to return servicemen to the workforce.©? These services were extended to disabled peoples, who prior to the 1950s ‘were permanently relegated to private spaces.’

The next ideological shift coincides with the International Disability Rights Movement (‘IDRM’), largely attributed to the formation of the United Persons with Impairments Against Segregation (“UPIAS’) in 1972 UK, led by Paul Hunt.® Hunt lived in an institution, and formed the idea alongside residents who were united in a ‘bitter struggle with the authorities over the right of disabled people to have control over

4© Shadows, Struggles and Successes, (n 40) 44.

47 Parliamentary Education Office, ‘Invalid and Old-age Pensions Act 1908’ PEO (online, 2025) <https://peo.gov.au/understand-our-parliament/history-of-parliament/history-milestones/australian-parliament-history timeline/events/invalid-and-old-age-pensions-act-1908>.

48 Dale Daniels, ‘History of Australian Pensions’ Parliamentary Library: Parliament of Australia (online, 24 February 2011) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/201 1/February/Hist ory_of Australian_pensions>.

Matthew Stubbs, Adam Webster and John Williams, Persons with Disability and the Australian Constitution (Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, October 2020), 2-3; Geelong Advertiser, ‘PENNSION PAYMENTS’ National Library of Australia (News article, 16 July 1909).

°° Parliamentary Education Office, ‘Invalid and Old-age Pensions Act 1908’ (n 47).

5! Invalid and Old-Age Pensions 1908, s20;

? Ibid, s 21(1); The same exclusion applied per s 16(1).

% Ibid, s 17(c).

4 Tbid, s 22(f).

5 Tbid, s 22(h).

% Ibid, s 22(g).

57 Shadows, Struggles and Successes, (n 40), 44, 48-53.

58 Gerber, D. A (ed) Disabled veterans in history: Discourses of disability (University of Michigan Press, 2012), 3; Henri Jacques Stiker, A History of Disability (2019), 123.

»° Thid, 50-3.

6° «The Repatriation Commission’ Department of Veterans’ Affairs (Web Page, 2025) <https://www.dva.gov.au/about-us/who we-are/the-repatriation-commission>.

6! N. Caddick et al., ‘Resisting decline? Narratives of independence among aging limbless veterans’, (2018) Journal of Aging Studies 46, 25.

® Shadows, Struggles and Successes, (n 40).

6 ‘History of Australia’s Disability Movement’ People with Disability Australia (online, 2025) <https://pwd.org.au/about us/about-disability/history-of-australias-disability-movement/>.

64 Rachel Carling-Jenkins. Disability and Social Movements: Learning from Australian Experiences. (Routledge, 2014)

65 Colin Barnes, ‘Union of the Physically Impaired Against Segregation (UPIAS)’ in Gary L Albrecht (ed), ‘Encyclopedia of Disability’ (SAGE Publications, 2006) <https://sk.sagepub.com/ency/edvol/disability/chpt/union-the-physically-impaired against-segregation-l# >.

their lives within the institution and for some representation on the management committee.’°° The UPIAS formulated plans for what supports would be required for impaired people to live in the community, and articulated how they would like to be defined at law in the 1974 Fundamental Principles of Disability. Impairment meant: ‘lacking part of or all of a limb, or having a defective limb, organ or mechanism of the body.’ Disability meant: ‘the disadvantages or restriction of activity caused by a contemporary social organisation which takes no or little account of people who have physical impairments and thus excludes them from participation in the mainstream of social activities.’

Explicitly built from this foundation, Michael Oliver’s 1983 Social Work with Disabled People articulated what became known as the social model of disability.©’ Under the social model, disability is an evolving concept which is socially produced, and therefore it can be overcome through radical social upheaval.® This definition contrasts with the medical model of disability, which is rooted in Enlightenment ideals and Cartesian views of the body as a machine where impairment is a form of loss to be repaired or contained.” Consistent with the medical model, early measures like the invalid pension and post-war rehabilitation framed disability as an individual deficit to be fixed or contained. Global advocacy, particularly the UN’s International Year of Disabled Persons in 1981 marked a turning point.’° In Australia, the election of the Hawke government saw significant reform like the 1985 Handicapped Programs Review: New Directions, which recognised: ‘[Disabled peoples] have made it clear that they want to be treated as people first—people whose abilities matter more than their disabilities.””! This ethos was codified in the 1986 Disability Services Act, which aimed to: ‘assist persons with disabilities to receive services necessary to enable them to work towards full participation as members of the community’.’” The Hawke government delineated social service priorities by targeting resources ‘especially on the dependent, the disabled and the disadvantaged’, fostering expectations under the Service Standards that funded services should recognise rights and realise individual capacities.”

As discussed, the 1945 unemployment benefit was a post-war vision to prevent deprivation and discrimination, initially designed for a short-term unemployment in a male dominated workforce. In 1973, 37000 (0.5% of working age population) were on benefits, and by 1993, this number had risen to 914000 (8% of working age population). 4 Under the Hawke government, Newstart replaced unemployment payments in 1991 as part of the Active Employment Strategy (‘AES’), aimed at addressing long-term unemployment while supporting ‘greater access for the more disadvantaged.’’> The active method was designed so that income support was conditional on engagement with employment programs, the obligations of which increased the longer someone was unemployed.’° While theoretically sound, successive governments have applied stricter rules and outsourced enforcement to private job providers, creating accountability gaps.’’ Parallel to these changes, the 1991 Disability Support Pension replaced the Invalid Pension. The DSP aimed to foster independence and labour market integration through targeted

6 Judy Hunt. ‘Report on the Union of the Physically Impaired Against Segregation’ (online, 25 July 2001) https://www.labournet.net/other/0107/upias1.html.

67 Michael Oliver. Social Work with Disabled People (Macmillan Education LTD, 1983).

68 Anna Lawson and Angharad E Beckett, ‘The Social and Human Rights Models of Disability: Towards a Complementarity Thesis’ (2021) The International Journal of Human Rights 25(2), 348.

6° By extension of its foundation in western healthcare, the medical model of disability is aligned with the Enlightenment/Cartesian ideals of René Descartes. See René Descartes Discourse on Method ([1637], 2006).

7 Craig Wallace, ‘Only Human — Disability in Australian Politics (Part 2: Human Rights and Human Laws)’ Museum of Australian Democracy (online, 3 December 2016) <https://www.moadoph.gov.au/explore/stories/history/only-human disability-in-australian-politics-part-2-human-rights-and-human>.

7! Handicapped Programs Review (Cth), ‘New Directions: Report of the Handicapped Programs Review’ (Report, Australian Government Publishing Service, 1985).

? Disability Services Act 1986 (Cth), s 3(1)(b).

® Anthony Elliott, ‘The Hawke Government and Social Policy’ (1986) 58(2) Australian Quarterly 134, 135.

™ Luke Michael, ‘A Sad and Sorry History of Newstart’ Pro Bono Australia (online, 11 November 2019) <https://probonoaustralia.com.au/news/20 19/1 1/a-sad-and-sorry-history-of-newstart/>.

® Geoff Winter, A Guide to Newstart — The Active Employment Strategy (Background Paper No AU701.0, Parliamentary Research Service, 19 June 1991), 9.

7 Tbid, 1-9.

77, ‘Jobactive: Failing Those It Is Intended to Serve’ (Report, Senate Education and Employment References Committee, February 2019) <https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/024217/toc_pdf/Jobactivefailingthoseitisintendedtoserve. pdf;fileType=application%2Fpdf>.

social services, although its design continued to reflect assumptions about capacity and productivity rather than rights-based inclusion. Applicants were required to demonstrate they couldn’t maintain work for 30 hours a week and that their impairment was diagnosed, reasonably treated and stabilised. Initially, eligibility was assessed using a measure of 20% of ‘whole person impairment’ under the Tables for the Assessment of Impairment for Disability Support Pension. Following concerns over fairness by expert committee, changes were made in 1993 to replace the 20-percentage rating system with a 20-point level rating system.” The Tables adopted in 1997 after trials alongside the Work Ability Tables” remained largely unchanged, until the Gillard government. In contrast to the IDRM, the DDA defines disability as a loss of functional capacity or incapacity to work — which aligns with how impairment is defined under the s 94(1) of the DSP as a loss of functional capacity affecting a person’s ability to work.

This history reveals that disability policy in Australia and the DDA evolved within a welfare paradigm, shaped by assumptions of dependency, productivity and moral-worth rather than human rights-based principles. Crucially, the DDA predates the CRPD, branching from the foundation of the 1975 Declaration on the Rights of Disabled Persons, which promotes disabled peoples right for ‘human dignity’ and to ‘have the same fundamental rights as their fellow-citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.’®° Unlike a treaty, measures adopted by states under a declaration are discretionary and unenforceable. Unsurprisingly, the DDA only prohibits discrimination ‘as far as possible’ and doesn’t entitle disabled peoples ‘to the measures designed to enable them to be as self-reliant as possible.’*!

Contemporary context of eligibility for DSP and NDIS

The intersection of disability and poverty in Australia remains a contemporary issue. According to the Australian Federation of Disability Organisations (‘AFDO’), nearly 38% of adults living in poverty have an impairment and one in six disabled people live below the poverty line — double the rate of abled people.” DSP and NDIS were intended to alleviate barriers, yet decades of tightening eligibility have turned them into near-impenetrable strongholds. In 2024, AFDO estimates that around 200,000 people with disability are denied DSP, leaving them on the far lower JobSeeker (previously Newstart) payment, while the NDIS — framed as a ‘cost blowout’ — faces tightening funding for foundational supports, excluding most disabled peoples entirely.? This section continues the history leading to the establishment of the NDIS and the parallel tightening of social-security access.

Public discourse around disability support is dominated by narratives of fiscal crisis and welfare dependency, with successive governments vying to appear tough on the unemployed. In 1997, the Howard government froze the Newstart by indexing it to the Consumer Price Index (‘CPI’), contrasting with old age and disability pensions linked to faster-rising wages.** Studies have shown that from the perspective of poverty alleviation, the worsening Newstart rate has increased both poverty and financial stress, leading to longer periods of welfare dependence, not less.*° In 2006, the Howard government’s ‘Welfare to Work’

78 Advisory Committee on the Review of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Cth), Review of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Report, Department of Families, Housing, Community Services and Indigenous Affairs, 2011), 2.

” Karen Healy, ‘Explaining Continuity and Change in Child Protection Policy: The Contribution of Policy Analysis’ (2008) 17(4) International Journal of Social Welfare, 360.

8° Declaration on the Rights of Disabled Persons, GA Res 3447, (UN GAOR, 30th sess, 2433rd plen mtg, UN Doc A/RES/3447, 9 December 1975), art 3.

8! Thid art 5.

®? Australian Federation of Disability Organisations (‘“AFDO’), ‘Poverty and Disability — Fast Facts’ (Report, AFDO, 2019) https://afdo.org.au/disability-support-pension/poverty-and-disability-fast-facts/.

83 AFDO, ‘AFDO Initial Response to 2024 Federal Budget’ (Report, AFDO, 15 May 2024) <https://afdo.org.au/wp content/uploads/2024/05/2024 05-AFDO-Response-to-2024-Federal-Budget.pdf>.

84 Bruce Bradbury and Peter Hill, ‘Australian Income Support Since 2000: Those Left Behind’ ACOSS/UNSW Sydney (Report No 2, Poverty and Inequality Partnership, Build Back Fairer Series, October 2021) 9-11.

85 Ben Phillips, et al. ‘Research Note: Newstart and Other Government Allowances: Incomes, Financial Stress and Poverty’

https://australiainstitute.org.au/post/lengthy-delays-undermine-confidence-in-australian-foi-process/.

laws imposed more onerous obligations for welfare and pension recipients.*° Disabled peoples assessed as capable of working 16 hours or more per week no longer qualified for DSP,°’ and were moved to the lower Newstart rate.

This paradigm shift laid the foundation for subsequent governments to escalate obligations and reassessments, perpetuating the mythology of the dole bludger to prioritise cost-cutting over inclusion. This tightening of eligibility occurred as international momentum grew around disability rights, culminating in the CRPD. The social model provided the ‘knowledge base’ for the drafting of the CRPD, acknowledged in the preamble.® Under art 1 of the CRPD, disabled peoples include those with ‘long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.’? The human rights model of disability embeds the social model’s ethos within a prescriptive framework which centres on the eight principles outlined in art 3 of the CRPD.”° These principles require states to dismantle structural barriers and fulfill inclusion across all sectors. ‘Full participation’ requires systemic reforms in employment, education and social welfare — areas where Australian policy remains inconsistent while continuing to prioritise cost cutting over inclusion.

While Rudd’s government ratified the CRPD, it excluded Newstart recipients from the 2009 stimulus offered to age and disability pensioners.?! This decision reflects a persistent assumption that full employment will resolve systemic inequality, ignoring stagnant wages and limited job availability. Australia’s Future Tax System Final Report identified the growing gap between Newstart and pensioner payments as a key issue facing Australia. The report warned that unless the rules were changed, Newstart would shrink to 1/5 of the pension by 2030, and 1/3 of the pension by 2050.” Despite calls to boost the payment, successive governments have failed to act, in what then-treasurer Ken Henry has called an ‘intergenerational tragedy’.°? Even John Howard has since conceded that that the freeze on Newstart was a mistake.”*

In 2011, the Gillard government vowed a tougher stance on welfare than the Coalition governmen declaring to the Sydney Institute at Luna Park that ‘everyone who can work should work’, framing

t,?>

86 Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) (Consequential Amendments) Bill 2006 (Cth). 87 DSS, ‘Social Security Guide: 1.2.5.10 Disability Support Pension’ Australian Government (online, 2025) https://guides.dss.gov.au/social-security-guide/1/2/5/10. 88 CRPD, Preamble (e); R. Traustadottir. ‘Disability Studies, the Social Model and Legal Developments’, in The UN Convention on the Rights of Persons with Disabilities — European and Scandinavian Perspectives, eds. O. Arnardottir and G. Quinn (Martinus Nijhoff, 2009), 3, 16. % Thid, art 1. °° CRPD, art 3:

Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; Non-discrimination; Full and effective participation and inclusion in society; Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; Equality of opportunity; Accessibility; Equality between men and women; Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities. *! Reuters, ‘Australia’s Rudd Unveils $7.3 Billion Stimulus Plan’ (online, 14 October 2008) <https://www.reuters.com/article/us-australia-economy-rudd/australias-rudd-unveils-7-3-billion-stimulus-plan idUSTRE49D0CH20081014/>. *? Ken Henry, ‘Australia’s Future Tax System—Final Report: Part 1 (Consolidated)’ (Report, Commonwealth of Australia, 2010), 62. °3 Gareth Hutchens, ‘Australia’s Tax System Is Worse than It Was 15 Years Ago, and Young People Are Paying the Price, Ken Henry Says’ ABC (online, 15 February 2024) <https://www.abc.net.au/news/2024-02-15/ken-henry-australias-tax-system-in worse-position-after- 1 5-years/103465044>. °4 Elly Duncan, ‘Even John Howard Backs Increasing Newstart’ SBS (online, 30 July 2019) https://www.sbs.com.au/news/the-feed/even-john-howard-backs-increasing-newstart. °5 Pro Bono Australia, ‘Welfare Sector Fights Crackdown’ (online, 16 March 2011) <https://probonoaustralia.com.au/news/201 1/03/welfare-sector-fights-crackdown/>.

PNAYMAWN

employment as a pathway to dignity.”° Under the Gillard ‘tough love’ budget, those on the Single Parent’s payment, the long-term unemployed and disability support pensioners under 35 faced strict work and training obligations or risked losing their payments.”’ Earlier Tables assessed medical diagnosis and symptoms; Gillard’s reforms shifted to a functional approach, drawing from the language of the social model of disability to assess how impairments affect daily activities and work capacity. This shift warrants caution: as such reforms echo global patterns of human rights misappropriation, where rights discourse is co-opted to legitimise exclusionary agendas rather than fulfill obligations of equality and inclusion.”® The effect of Gillard’s reform aimed to move 11% of DSP participants to Newstart,” as described by the Parliamentary Library.!°° Senate review argues that Gillard’s approach is poorly implemented, most significantly the Tables confuse intellectual function with adaptive behaviour.!°! The National Council on Intellectual Disability warned this would had the immediate effect of removing 20,000 people who previously qualified with IQ below 70 from DSP, requiring them to undergo job seeking activities despite limited job prospects and higher risk of poverty.!°? Further, vague descriptors like ‘mild’, ‘moderate’ and ‘severe’ impairment were introduced without standardised benchmarks!®? — which continue to cause confusion today. In 2022, Department of Social Services (‘DSS’) data revealed ‘358000 people on the jobseeker payment — or 43.1% — had “partial capacity to work”, meaning they can only work between 15 and 30 hours a week.’!™ Of this dataset, 41% had a mental health condition and 111000 (31%) have a musculoskeletal or connective tissue disorder.’°° Like many with musculoskeletal disorders who are ambulant with assistive technology, I was twice denied DSP because access for lower-limb impairment requires inability to stand from a seated position.

The Gillard government should be commended for introducing the NDIS in 2013, although its ideation shouldn’t be attributed to her government. The NDIS was first proposed under the Whitlam government as the National Compensation Scheme (‘NCS’) — in extension of the principles outlined in the New Zealand Woodhouse Report.‘°° Among the policies abandoned by the incoming Labor-right government following the Constitutional Crisis of 1975,!°’ the NCS proposed a universal, no-fault coverage for injury and illness — framing disability as a shared social risk rather than individual deficit.’°* While the policy retained medical authority and perpetuated some inequalities (such as privileging paid employment), the Whitlam government recognised disability within the national agenda as a facet of universal citizenship. The NCS conceived social security as a human right: providing benefits that were ‘certain, immediate, automatic, total, uniform and universal,’ and intended to replace social security with earnings-related benefits for all

°7 AAP, ‘Welfare System Overhaul’ SBS News (online, 2011) <https://www.sbs.com.au/news/article/welfare-system overhaul/x5rh37zd3>.

°8 Varun Gauri, The Misappropriation of Human Rights (OpenGlobalRights, 14 September 2021) https://www.openglobalrights.org/misappropriation-human-rights/

»° Coonan, Jay, Kristin O’Connell and Giancarlo de Vera, Impairment Tables Impair Our Access to Supports: People with Disability Australia’s Submission to Department of Social Services’ Review of the Disability Support Pension Impairment Tables (Submission, People with Disability Australia, 13 August 2021).

100 Don Arthur, JobSeeker Payment: A Quick Guide, Research Paper Series, 2019-20, 13 March 2020, Parliamentary Library,

Canberra,

<https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1920/Quick Guide s/JobSeekerPayment>.

’01 National Council on Intellectual Disability, Submission to the Senate Community Affairs Committee Inquiry into Social Security and Other Legislation Amendment (Schedule 3 — Disability Support Pension Impairment Tables) Bills 2011 (Submission, 18 August 2011).

102 Thid 14.

103 Tid 15.

104 The Guardian, ‘Almost half of JobSeeker recipients unable to work full-time due to sickness or disability’ (online, 19 September 2022) <https://www.theguardian.com/australia-news/2022/sep/19/almost-half-of-jobseeker-recipients-unable-to work-full-time-due-to-sickness-or-disability>.

105 Tbid.

106 Harold Luntz, ‘Looking Back at Accident Compensation: An Australian Perspective’ (2003) 34(2) Victoria University of Wellington Law Review 279.

107 Parliament of Australia, ‘Chapter 4: Elections for the Senate’, Odgers’ Australian Senate Practice (Web Page, 30 June

https://www.aph.gov.au/About_Parliament/Senate/Practice_and_Procedure/platparl/c04. 108 Louise St Guillaume, ‘Disability Policy and the Whitlam Government’ (2024) 70(2) Australian Journal of Politics and History 188.

people with disability and their carers rather than subsistence-level payments.!°? Unlike the NCS, the NDIS is designed as a needs-based support system, funding ‘reasonable and necessary’ services rather than universal coverage. NDIS access is contingent on proving permanence and functional impact, creating selective eligibility hurdles which exclude most.’!° According to the latest ABS survey released in July 2024, around 5.5 million or 21.4% of the population are living with a disability, with around 7.9% of that population experiencing profound or severe disability, requiring support. ‘!’ The NDIA claim 751,446 people are receiving support under the NDIS, which means that if every participant had high-level needs (which they don’t) the scheme covers well under half of those requiring support.’!* While both frameworks invoke rights-based language, Whitlam’s NCS prioritises universality and poverty alleviation, whereas the NDIS centres on standardised rehabilitation plans within a free-market, relegating income security to the DSP.

Building on Howard’s Welfare to Work laws, the Abbott government, introduced measures requiring government-appointed doctors to override applicants’ medical evidence during DSP assessments — a gatekeeping exercise which whistleblowers claim is a ‘waste of time and money’ with few ‘malingerers’.!‘? Having participated in this assessment with a contract doctor employed by SonicHealth Plus — this step added no evidentiary value, caused me significant distress and prolonged the application process. These measures were framed as fiscal prudence, justified to offset the NDIS by reducing DSP participants,!’ yet they ignored systemic barriers to employment, reinforcing stereotypes of welfare recipients as unwilling to contribute. Under the Morrison government, Newstart was renamed to JobSeeker, reinforcing the view that welfare is a short-term safety net rather than a rights-based entitlement.‘!> From April 2020-2021, the Morrison government introduced the Coronavirus Supplement as part of its economic response to COVID 19 — effectively doubling the rate by adding $550 per fortnight to JobSeeker.’!® This temporary increase lifted many recipients above the Henderson Poverty Line.‘’’ Even with the increase, JobSeeker remained the second-lowest benefit among OCED countries at about 27% of the average wage compared to an OCED average of 58%.!18

In his May 2022 election victory speech, Prime Minister Anthony Albanese announced two principles that would guide his government: ‘No one left behind because we should always look after the disadvantaged and the vulnerable. But also no one held back, because we should always support aspiration and opportunity.’!!? Despite this, the May 2023 federal budget increased JobSeeker by less than $40 a fortnight, only 16% of the $256 per fortnight rise recommended by the Interim Economic Inclusion Advisory Committee.’ The Australian Council of Social Services reported recipients live $538 per fortnight under the poverty line, with severe housing insecurity, poor health and social isolation.’*! The government’s 2023 employment White Paper frames ‘full employment’ as a cornerstone of a strong economy and inclusive society — promising to reduce structural barriers so that ‘everyone who wants a job

10 Tbid, 199.

10 “Disability, Ageing and Carers, Australia: Summary of Findings’ (Report, ABS, 4 July 2024).

“I Thid.

’2 NDIA, ‘NDIS in Each State’, NDIA (online, 2025) https://www.ndis.gov.au/understanding/ndis-each-state.

“3 Melissa Sweet, “Bad backs, a bit of depression and so on” — a throwaway line for some, a life sentence for others’ (Web Page, The Conversation, 18 December 2016) <https://theconversation.com/bad-backs-a-bit-of-depression-and-so-on-a throwaway-line-for-some-a-life-sentence-for-others-70576>.

’l4 SBS News, ‘NDIS poorer without welfare cuts: Morrison’ (Web Page, 13 February 2017) https://www.sbs.com.au/news/article/ndis-poorer-without-welfare-cuts-morrison/s7ohrkre7.

‘5 «JobSeeker and JobKeeper Are Changing. Here’s How You Could Be Affected’, SBS News (online, 21 July 2020)

https://www.sbs.com.au/news/article/jobseeker-and-jobkeeper-are-changing-heres-how-you-could-be-affected/68s1rx95u. ’l6 David Richardson, ‘A Generous Increase in Newstart? The Effect of the Coronavirus Supplement’ (Report, The Australia Institute, March 2020) 2-3.

“7 The Australia Institute, ‘Australia Fails to Hold the Poverty Line’ (Media Release, 3 May 2016) https://australiainstitute.org.au/post/australia-fails-to-hold-the-poverty-line/.

18 Brendan Coates, ‘The JobSeeker Rise Is Not Enough’, Grattan Institute (online, 24 February 2021)

https://grattan.edu.au/news/the-jobseeker-rise-is-not-enough/.

19 ABC News, ‘Read Incoming Prime Minister Anthony Albanese’s Full Speech After Labor Wins Federal Election’ (online, 22 May 2022) https://www.abc.net.au/news/2022-05-22/anthony-albanese-acceptance-speech-full-transcript/101088736. 120 Philip Mendes, ‘Poverty and Jobseeker: “Nobody is Left Behind” Is a Communal Responsibility’ (John Curtin Research Centre, 23 May 2023) https://curtinrc.org/poverty-and-jobseeker-nobody-is-left-behind-is-a-communal-responsibility/.

1 Thid.

is able to find one without having to search for too long.’!”? The policy of full employment is silent on mandatory work obligations, prioritises productivity and labour supply while ignoring unpaid care and the material limitations of impairment.

In October 2023, Getting the NDIS Back on Track Bill came into effect, justified by then-disability minister Bill Shorten as ‘reigning in the program’s growth by $14 billion in four years’ — which represented $42 billion in 2023-24.‘?3 Despite Mr Shorten claims that ‘this is not a cut’, this reform cannot be interpreted in any way other than cost-containment.’”* The Bill includes powers for the NDIA to distinguish between ‘classes’ of disability, reducing access for people with psychosocial disabilities and autistic children.‘> The Bill removes the right to independent review, enables debt recovery against participants and restricts supports to an approved list — eliminating ‘choice and control’.!”° Media release indicates individualised budgets are to be replaced with standardised funding categories in mid-2026 determined through the i-CAN assessment tool!?’ and independent support coordinators will be replaced by NDIA contracted assessors trained at the University of Melbourne. !? Standardised housing models for high-needs participants include group homes with 1:3 staffing arrangements.’”? ‘Foundational supports’ are proposed as a tier of disability related assistance delivered outside of the NDIS, intended to provide early intervention and community based mainstream systems — though it is unclear what these supports will be, as they currently do not exist.‘5° Budget forecasts indicate 27,000 fewer participants than the current 500,000 over four years.!3! In contrast, the Grattan institute argues that sustainability should be achieved through clearer eligibility guidelines and a consistent and participant-led needs-based assessment model.’** Grattan also recommends updating the 2012 National Disability Agreement to clarify responsibilities between state and federal government to improve coordination, instead of relying on restrictive measures that risk undermining human rights.‘*> Significantly, Grattan asserts these changes can be achieved without reducing participant rights or eliminating independent review mechanisms.’**

Upon ratification of the CRPD, Australia declared an erroneous understanding that the CRPD allowed for ‘fully supported or substituted decision-making arrangements.’‘° This is decidedly against the spirit of the CRPD, and the overarching IDRM principle of nothing about us without us. PWDA calls for genuine co-design at all stages while criticising the removal of ‘reasonable and necessary supports’ language, fearing a return to deficit-based service models.’° Critics, including Senator Jordon Steele-John warn these reforms undermine the original intent of the NDIS as a universal, rights-based scheme.’*’ Pointing to the

22 Commonwealth of Australia, Working Future: The Australian Government’s White Paper on Jobs and Opportunities (Final Report, September 2023) https://treasury.gov.au/employment-whitepaper/final-report, vii.

23 Jake Evans, ‘““This Is Not a Cut”: Shorten Defends NDIS Reforms That Will Save Government $14 Billion’, ABC News (online, 25 August 2024) <https://www.abc.net.au/news/2024-08-25/shorten-defends-ndis-reforms-cost-saving-not-a cut/104267202>.

24 Thid; It’s not a ham sandwich, it’s a cost-cutting measure.

’25 People with Disability Australia, ‘What You Need to Know About the Recent NDIS Changes’ (Web Page, 22 August 2024) https://pwd.org.au/what-you-need-to-know-about-the-recent-ndis-changes/.

26 Thid.

7 Centre for Disability Studies, ‘i-CAN Clinical Services’ (Web Page, 2024) https://cds.org.au/clinical-services/i-can/.

28 Rick Morton, ‘Algorithm to Be Used for NDIS Plans’, The Saturday Paper (online, 4 October 2025) https://www.thesaturdaypaper.com.au/news/health/2025/10/04/algorithm-be-used-ndis-plans.

’29 Sam Bennett and Hannah Orban, Better, Safer, More Sustainable: How to Reform NDIS Housing and Support (Grattan Institute, Report No 2024-07, September 2024) <https://grattan.edu.au/report/better-safer-more-sustainable-how-to-reform ndis-housing-and-support/>.

130 Thid.

’51 Jake Evans, ‘As NDIS Overhaul Nears, Participants with Psychosocial Disability Fear for “Unknown 27,000” Who May Miss Out’, ABC News (Online, 24 October 2023) <https://www.abc.net.au/news/2023 -10-24/ndis-psychosocial-disability-fear 27000-who-may-be-diverted/103000730>.

’32 Grattan Institute, ‘Saving the NDIS’ (Report, March 2024), 4.

133 Thid, 68.

34 Thid, 40.

135 Bayefsky.com, Australia: Treaty Database — Convention on the Rights of Persons with Disabilities https://www.bayefsky.com/html/australia_t2_disability.php.

136 People with Disability Australia, Here to Stay — Working to Future Proof the NDIS: Submission to the Senate Community Affairs Legislation Committee Inquiry into the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (Submission, 21 May 2024).

‘37 Paul Karp, ‘Government NDIS Review Overhaul Criticism Greens Labor NDAs’ The Guardian (Online, 26 March 2024) https://www.theguardian.com/australia-news/2024/mar/26/government-ndis-review-overhaul-criticism-greens-labor-ndas.

non-disclosure agreements disabled peoples and organisations must sign to participate in NDIS co design,’** Steele-John asserts: ‘The disability community have a principle: nothing about us without us. … The principle [the government] applies is: everything about you, and you can only get a word in if you sign this confidentiality agreement.’ ’*°

In Australia, social security is less of a net intended to secure the welfare of citizens, but more of a stress test designed to see how far one can fall before the state must intervene. Despite rehabilitation measures since the 1950s,‘° the 2019 CRPD Committee review claims that thousands of disabled peoples continue to be confined to institutions (aged care and group homes) due to lack of accessible housing and adequate economic security.’! It also criticised the persistence of segregated education and employment settings, such as Australian Disability Enterprises (‘ADEs’).!”

ADEs are segregated workplaces for disabled peoples. If the acting government were serious about its commitment to full participation for disabled peoples, it would have adopted DRC rec 7.30 which urges the DSS to plan for transitioning ADE workers into inclusive, open employment.!? ‘Supported employees’ at ADEs are legally paid less than minimum wage if their output is diminished due to impairment. As of September 2024, 20,000 supported employees work in about 600 ADEs across the country.!44 Following findings of the DRC, in 2023 the Fair Work Commission agreed to raise the Supported Wage System (‘SWS’) to a minimum of $2.90 an hour over three years. The minimum wage for unsupported work is $24.95 an hour.‘** A NDIS participant can be funded to be supported in mainstream and ADE work — a support worker will be awarded at minimum $70.23 an hour.’° DES providers are supported in making applications that DSP and JobSeeker recipients in a POS seek employment under the SWS.!*’ This breaches art 27 of the CRPD, wherein states must ensure equal access to employment with adequate renumeration in an open labour market. Auxiliary to this obligation, or any reports I can cite — this framework is hardly a solution to unemployment and is morally reprehensible. If the AG’s office is reading this in earnest, please stop. In concluding remarks, the Committee stressed assenting to the CRPD was meaningless unless implementation was enforceable, and the lives of disabled peoples improved.’** Full employment in Australia is unrealistic; some people are so profoundly disabled that economic independence is unattainable. Historically, disabled peoples are assumed lazy and unwilling to work. While I don’t speak for everyone, I have strived for employment from an early age. I want to participate in society, which includes being renumerated for work.

’38 Helen Dickinson, ‘The NDIS reform bill has been passed — will it get things “back on track” for people with disability?’ UNSW Newsroom (online, 22 August 2024) <https://www.unsw.edu.au/newsroom/news/2024/08/the-ndis-reform-bill-has been-passed—will-it-get-things–back->.

39 YouTube, ‘NDA’s & The NDIS - The exact opposite of transparency Labor gov promised’ (Video [youtube shorts], 2024) https://www.youtube.com/shorts/UZzftShw-tw; Sarah Basford Canales, ‘Government’s NDIS review overhaul faces criticism from Greens over NDAs’ The Guardian (online, 26 March 2024) <https://www.theguardian.com/australia news/2024/mar/26/government-ndis-review-overhaul-criticism-greens-labor-ndas>.

‘40 Rachel Carling-Jenkins, ‘Disability in Australian History’ in Disability and Social Movements: Learning from Australian Experiences (Routledge, 2014).

‘41 “UN Review on the Rights of Persons with Disability in Australia’, AFDO (online, 17 September 2019) https://afdo.org.au/un-review-on-the-rights-of-persons-with-disability-in-australia/.

12 Thid.

’43 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, ‘Final Report — Executive Summary, Our Vision for an Inclusive Australia and Recommendations’ (Report, Australian Government, 29 September 2023), rec 7.30 [257].

’44 ABC News, ‘Australian Disability Enterprises Face Uncertain Future after Royal Commission Recommendations’ (online, 29 September 2024) <https://www.abc.net.au/news/2024-09-29/australian-disability-enterprises-future-royal commission/104331332>.

‘45 Fair Work Ombudsman, ‘Minimum Wages’ (Web Page, Australian Government) <https://www.fairwork.gov.au/pay-and wages/minimum-wages>.

‘46 National Disability Insurance Scheme, NDIS Pricing Arrangements and Price Limits (Web Page, Australian Government,

https://www.ndis.gov.au/providers/pricing-arrangements#ndis-pricing-arrangements-and-price-limits. ‘47 Australian Government, ‘Supported Employment’, DSS (Web Page, 2024) <https://www.dss.gov.au/disability employment-support-programs/supported-employment>.

148 Thid.

For this submission, I have uploaded three phone calls with Centrelink employees trying to exercise rights under the CRPD, gathered via Freedom of Information Act 1982 (Cth) requests in 2022. It is suggested that the reader access these recordings [accessible via footnote 149-151] before continuing with this document.

In seeking DSP, my personal testimony and distress was dismissed — a lawful exercise of statutory power under the DDA. First, a Centrelink employee dismissed my objection to grading under the Tables as ‘cruel’, likening the process to a bank loan and refusing to accept my testimony and medical evidence: I had him submit a complaint citing rights under the CRPD.!”” Second, after rejection (10 points under Table 3 for lower limb function), a review officer falsely suggested 20 points on Table 3 might be possible (knowing I can stand from a seated position, making it impossible) while deferring to an advisory unit, leaving me distraught.!°° Third, Centrelink restricted my ability to lodge further complaints and refused a written apology for harms caused by the impairment assessment process, stating they cannot apologise for how the law is written.!°’ These interactions stripped me of autonomy over my own body and punished my attempts to protest — clear violations of the CRPD rights to dignity and access to justice, protections not offered by the DDA.

In late 2022, ABC wrote an article about my difficulties accessing both DSP and NDIS, a process I described as ‘dehumanising’, ‘degrading’ and a ‘hate-crime’.’°? Both programs are supposed to promote dignity and help people like me. My impairment is degenerative; the energy I’ve expended to secure basic supports has been overwhelming. When asked what my disability is, I claim depression, not because a doctor has diagnosed me, but because the persistent erosion of my right to speak for myself has left me disempowered. I am writing from law school because this is where I have come to seek autonomy. Early assertions to Services Australia that denial of access amounted to a ‘hate crime’ was inaccurate in domestic law. Yet, it reflects the gravity of harm when systems designed to protect rights instead perpetuates paternalism. Full employment policies are defended as promoting equality, but they ignore the lived reality that securing a job, keeping it and earning a living wage are distinct challenges for disabled peoples. Support is good; mandatory intervention is not. It continues a legacy of control rather than empowerment — a contradiction at the heart of Australia’s DDA.

My experience navigating DSP and NDIS is not an isolated event but indicative of larger systemic flaws in the complaint’s framework itself. I have isolated my experience outside of this document as it’s not everything about me; it’s everything about us.

Australia’s disability policy prioritises fiscal conservativism over rights-based inclusion, which is symptomatic of a wider implementation gap where CRPD commitments are not reflected in domestic law. This gap reflects a broader tension: although Australia is party to seven international human-rights treaties,’°> at a domestic level protections of human rights are inconsistently applied. Before critiquing alignment with protections under the DDA with the CRPD, the next section introduces the foundations of international human-rights law. ¢

The 1948 Universal Declaration of Human Rights (“UDHR’) adopted by the UN general assembly made no attempts to narrow interpretation of rights, encompassing all rights considered essential for a dignified

‘49 Youtube, ‘Centrelink Evidence: going to the bank or asking for welfare?’ (Video, 7min 10sec) https://www.youtube.com/watch?v=EtsRiIQRm-jM&t=4s.

’5° Youtube, ‘Centrelink Evidence: trying to advocate for myself’ (Video, 10min 2sec) https://www.youtube.com/watch?v=O6006WsM8X4.

‘5! Youtube, ‘Centrelink Evidence: Services Australia can’t put apology in writing at law’ (Video, 9min 12 sec) https://www.youtube.com/watch?v=KnLvDxwW8ww.

’52 Semmler, Disability Support Pension Centrelink Process (n 8).

’53 CRPD; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’); /nternational Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (“(ICESCR’); 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); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); 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).

life, secured by principles of fairness, mutual respect, dignity and equality.154 Cold war politics prevented the aspirations of the UDHR being transformed into a unifying treaty as originally planned.155 Instead, two covenants emerged: the International Covenant on Civil and Political Rights (‘ICCPR’) and International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). 156 Differences between them were largely artificial in substance, but were drafted to accommodate communist and capitalist sensibilities. In Australia, obligations under the CRPD are interpreted in conformity with positions held with comparable rights in ICCPR and ICESCR. Generally, the primary source of civil and political rights is the ICCPR, which protect citizens from state infringement and empower inclusion in society. While the source of economic, social and cultural rights such as ‘the workplace, social security, family life, participation in cultural life, and access to housing, food, water, health care and education’157 relate to the ICESCR. The ICCPR requires states to give effect to its rights immediately, regardless of available resources.158 In contrast, ICESCR rights are progressively realised, requiring state to take effective steps toward full implementation over time, with consideration to available resources.159 CRPD rights to equality and non discrimination require immediate implementation,160 while certain economic, social and cultural rights are obligated to be progressively implemented.161 Traditionally, scholarship has framed the obligations of the ICESCR as positive and ICCPR as negative. Contemporary understandings recognise civil and political rights are more than restrictions on how governments can act but also refer to what states must do to ensure rights are realised. ◆

This paper adopts a tripartite division of human rights to describe the nature of obligations to respect, to protect and to fulfill human rights.162 The following table compares these obligations with the current framework under the DDA.

CRPD: To respect Under the CRPD, states must refrain from directly violating rights. This means avoiding laws or policies which discriminate against disabled peoples or restrict their autonomy. Eg, governments can’t enact legislation which segregates people with disability from mainstream education or employment. DDA The DDA prohibits discrimination in key areas such as employment, education, accommodation and access to goods and services. Rights and responsibilities are clarified by Disability Standards. All CRPD rights are not guaranteed by the DDA (eg, independent living or full participation), nor does it address systemic barriers. Current policy maintains the status quo, while s 47 of the DDA entrenches economic inequality by absolving segregation from unlawfulness. Gap: Direct discrimination in limited circumstances is prohibited, but indirect systemic barriers remain unaddressed. CRPD: To protect Under the CRPD, States must protect individuals from rights violations by third parties. This is a positive obligation to regulate private actors (eg, employers, service providers and institutions) to prevent discrimination and abuse. Essential

to  this  obligation  are  anti-discrimination  laws  and  accessible  complaints

mechanisms. DDA Provides a complains mechanism through the HRC, but statutory acts are protected under s 47 of the DDA. Disability Standards impose obligations on

154 John Tobin, ‘Economic, Social and Cultural Rights and the Charter of Human Rights and Responsibilities – A Framework for Discussion, Occasional Paper’, Victorian Equal Opportunity and Human Rights Commission (Report, 2010), 3. 155 Ibid. 156 Ibid. 157 Office of the High Commissioner for Human Rights, Frequently Asked Questions on Economic, Social and Cultural Rights, Fact Sheet No 33 (United Nations, 2008) 1. 158 ICCPR, art 2(2); In practice, implementation cannot succeed without adequate resources. 159 ICESCR, art 2(1). 160 CRPD, art 3-5, 8, 12(1). 161 CRPD, art 4(2). 162 Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights Annex (UN Doc E/CN.4/1984/4, 1984).

private actors like transport operators and education providers, but service providers for disability services are not included in the same Standards. Systemic monitoring is limited, and enforcement is reactive and relies on individuals (some of whom have communication impairment) reporting/complaining. Gap: Framework exists, but the scope of how it is applied is narrow, and it lacks proactive oversight and meaningful remedies. CRPD: To fulfill States must take steps to ensure rights are fully realised. This includes investing in

accessible  infrastructure,  accessible  communication  and  social  security.

Fulfillment also requires creating real opportunities for participation in public life and ensuring access to justice when right are violated. DDA The DDA only eliminates discrimination ‘as far as possible’, rather than ensuring universal coverage. Exceptions for ‘unjustifiable hardship’ is interpreted in ways which prioritise organisational convenience. The DDA doesn’t require the state or businesses to retrofit accessibility unless triggered by complaints or Disability Standards. Broader obligations like habilitation and community inclusion are not enforceable and addressed through policy (eg, Australia’s Disability Strategy). Gap: The DDA is not designed to fulfill full participation or CRPD rights.

The aim of the DDA to prohibit discrimination lack enforceable substance. The s 47 exemption under the DDA transforms what should be a proactive rights-based framework into a defensive mechanism, perpetuating inequality rather than dismantling it. The credibility of current complaint mechanisms to deliver real justice is questionable. These issues are explored in the following section.

Complaints

‘Complaint mechanisms’ refers to a procedure within an organisation or institution or statutory authority where negative complaints can be filed by individuals based on their ‘experiences, conduct or policy; seek

individual  rectification;  and, where  appropriate  trigger  system  change.’163  Domestic  complaints

mechanisms are guided by the 2014 principles articulated by Standards Australia (in partnership with ISO).164 These principles share similarities with the core requirements of procedural justice of respectful treatment and transparency.165 Recent scholarship on procedural justice has reasoned that enabling individuals to share their perspective allows for an experience of ‘value sharing and recognition, even if this has no bearing on the final outcome.’166 Being heard is particularly significant in the context of disability inclusion, especially where complainants are excluded or discredited from participating in decision making, Australian complaints systems contribute to the segregation of disabled peoples in society by denying procedural justice.167 The complaints process has become a site of exclusion, where the burden of proof, credibility and emotional labour falls disproportionately on the complainant.168 Conversely, complaint mechanisms can serve as a site of humanity by validating experiences and offering recognition often denied at law.169 This is why complaints mechanisms should aim not just to resolve disputes but to restore dignity. Participating meaningfully in a complaints process means being recognised as a legal subject with rights. This principle is central to the CRPD’s framing under art 13 of equal access to justice.170 Human rights obligations must be applied to complaints mechanisms to reimagine them not as administrative

163 As described in: Dinesh Wadiwel, Claire Spivakovsky and Linda Steele, Complaint Mechanisms: Reporting Pathways for Violence, Abuse, Neglect and Exploitation (Report, University of Sydney, University of Melbourne and University of Technology Sydney, November 2022). (‘Complaint Mechanisms report’) 164 AS/NZS 10002:2014. 165 Complaint Mechanisms report, Chapter 3. 166 Complaint mechanisms report, 65 citing Tom R Tyler & Steven L Blader, ‘The Group Engagement Model: Procedural Justice, Social Identity, and Cooperative Behavior’, (2003) Personality and Social Psychology Review 7(4), 349–61, 351. 167 Complaint mechanisms report, 66-7 E Allan Lind & Tom R Tyler, The Social Psychology of Procedural Justice, (Springer US, 1988). 168 Ibid. 169 Ibid. 170 CRPD, art 13.

hurdles but as pathways to redress.171 Procedural justice for disabled people cannot be achieved through systems which silence, discredit us, or cast our bodies as problems to be solved. Anything less is bureaucracy masquerading as care. The HRC receives disability discrimination complaints, and if determined the issue raised is something covered by the DDA, the Commission can investigate and try and resolve the complaint – both

sides of the story will be explored.172  If the complaint  is not resolved or discontinued, in certain

circumstances where leave is granted, the Federal Circuit Court or Federal Court of Australia may hear the complaint.173 Resolution may include compensation or enforcement of a policy change.174 Section 47 of the DDA provides protections for statutory acts, allowing discriminatory treatment based on disability if it is ‘reasonable’ and supported by actuarial data. In practice, this provision entrenches economic exclusion and limits access to justice. Australia is also party to the 2009 Optional Protocol to the Convention on the Rights of Persons with Disabilities (‘Optional Protocol’).175 Under the Optional Protocol, the Committee on the Rights of Persons with Disabilities (‘CRPD Committee’) can receive and consider complaints of human-rights violations from jurisdictions who have assent to be bound by the CRPD.176 In consideration, general comments can be issued by the CRPD Committee, ‘with a view to promoting its further implementation and assisting States parties in fulfilling their reporting obligations’.177 Although general comments are non binding, they may assist in understanding the content of obligations under the CRPD.178 General Comment No.7 begins by reaffirming that the active participation of disabled peoples in the drafting of the CRPD is ‘the heart of the Convention.’179 The CRPD Committee clarifies that the active involvement of disabled peoples and their representatives is not optional but a legal requirement under art 4(3) and 33(3).180 This obligation applies to all decision-making processes, including those social protections including disability pensions and community inclusion policies.181 The Comment concludes that while many states have made some progress in terms of implementing the CRPD, they lament that unanimously progress is slow as states continue to fail to have ‘meaningful consultation with and involvement of persons with disabilities [and their representatives] in the development and implementation of policies and programmes.’182 As explored, aligning the DDA with the CRPD would shift the mechanism from a reactive complaints-based model to a proactive rights-based one, requiring organisations to prevent discrimination rather than defend it after harm occurs.

Conclusion

My body isn’t a barrier; it’s my interface to the world. My barriers are legislative, articulated by the Australian Government. Aligning the DDA with CRPD obligations would require dismantling systemic barriers and adopting proactive measures to guarantee equal participation and eliminate poverty. Deliberate scholarship on human rights tends to view the Constitution as best evidence for arguing for the existence of rights, though scholars in this field often neglect the question of who was included in the drafting.183 Giovanni Satrori has argued that the ideological project of Constitutionalism is more than a formal arrangement of government structures, but a normative project ‘which would restrict arbitrary power

171 Complaint mechanisms report, 205. 172 HRC (n 11). 173 Ibid. 174 Ibid. 175 Optional Protocol to the Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2518 UNTS 283 (entered into force 3 May 2008) (‘Optional Protocol’). 176 Ibid. 177 Committee on the Rights of Persons with Disabilities, Rules of Procedure, UN DOC CRPD/C/1/Rev.1 (10 October 2016), r 47. 178 Australian Government, Background Paper on the United Nations Convention on the Rights of Persons with Disabilities: Part 1 – Australia’s Position and Interpretive Approach (16 June 2020) 3. 179 CRPD Committee, General Comment No 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, (UN Doc CRPD/C/GC/7, 9 November 2018), 1. 180 CRPD, art 4(3), 33(3). Together, these articles enshrine an immediate obligation of states to actively consult with disabled peoples as a part of wider participation in public life. 181 CRPD committee, General Comment No.7, 2. 182 Ibid, 2, 4. 183 Marie-Bénédicte Dembour, ‘What Are Human Rights? Four Schools of Thought’ (2010) Human Rights Quarterly 32(1) 1.

and ensure a “limited government””’.!** A Constitution has two essential elements in this sense: a framework of government and a charter of rights.!®° Australia’s Constitution, shaped by legal positivism!** and the historical exclusion of First Nations sovereignty, omits explicit human rights guarantees. The absence of national human rights framework in Australia has created a significant implementation gap between the human rights treaties Australia has ratified and their domestic implementation, as argued by the Australian Human Rights Commission (‘HRC’) in the 2023 Free & Equal report.’®’ A federal human rights framework may close this gap, but this author remains sceptical such reform is likely in the near term. In its absence, repealing s 47 and aligning the DDA with the CRPD offers the most immediate pathway to full participation. This would transform human rights from aspirational rhetoric into enforceable standards.

Thank you for opening this matter for consultation. My medium to long-term NDIS goal reads ‘I would like to amend the Disability Discrimination Act to define disability as an interaction between personal and environmental factors’. [see Figure 1] This is how it is defined in the CRPD. This academic effort of co design is a step towards that goal, and I assure the reader this won’t be my last engagement with the AG’s office. I conclude this paper with a quote from my idol — who was so good at his job, the then-AG Sir John Kerr sacked him.

‘There are those who are quick to criticise government spending. There are those who would argue that at a time of economic difficulty we should cut back on all our programs. Nothing could be more short sighted.’ Gough Whitlam, 1974.’88

’84 Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) American Political Science Review 54(4) 855.

185 Tbid.

186 Thid, 856.

’87 Australian Human Rights Commission (‘HRC’), Free & Equal Final Report (Report, 2023).

’88 Edward Gough Whitlam, ‘Speech by the Prime Minister at the Opening of the Maroondah Social Health Centre, Ringwood,

Melbourne’ (Speech, | September 1974) <https://pmtranscripts.pmc.gov.au/release/transcript-33 70>.