Mary Walsh OAM, CPA, AIFS, JP(Qual)
SUBMISSION TO THE REVIEW OF THE DISABILITY
DISCRIMINATION ACT, 1992.
22 October 2025, This submission is being provided by me in my personal capacity as the mother of a son with a (then) rare intellectual disability. My life’s work, in CV form, as a community advocate for people like my son, is provided as Appendix 1.
Separate files are provided to support my submission on behalf of many.
| submit that:--
e The Disability Discrimination Act and the United Nations Convention on the Rights of People with a Disability (UNCRPD) have been weaponized and used unscrupulously against those they were meant to protect
e This weaponizing has gained more traction with the Royal Commission’s recommendations for supported employment (closure of ADE’s) and special education (closure of special schools). They were the desired outcomes to steer systemic change to the detriment of the minority in the disability population,
especially those for whom | advocate i.e. those with moderate to profound
intellectual disability
e “Segregation” is NOT “discrimination”.
e “The lived experience” of lifetime family carers/advocates has been demonised. Future social reform and “systemic change” will be poorer and less well defined unless this is reversed
e The well coined mantra “Nothing about us without us” has become “Everything about us without us”.
e Rights only activism in Australia masquerades as advocacy which is funded by Australian taxpayers.
e De-differentiation (one- size-fits-all) theory has failed those whose need for advocacy is paramount,
These facts are more fully explained in the accompanying hard copy files, previously supplied to those stakeholders named in Appendix 2. They are re-supplied as an integral part of this submission.
Mary Walsh OAM, CPA, AIFS JP(Qual) 1
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A summation of key facts forms this submission, based on my “lived experience” as a VOICE, on behalf of that disadvantaged minority, their families and life-time family carer/advocates.
| submit that the Disability Discrimination, Act, 1992, the UNCRPD and, more recently, the
non-unanimous recommendations of the Disability Royal Commission have been selectively used as the back-bone of a rights movement for social change.
No one denies the need for social reform, but the current process is discriminatory and lacks the most basic of human rights — that of CHOICE. The current social change agenda in the hands of rights activists, without any consultation with those affected, is forcing all people with a disability into mainstream life, irrespective of their circumstances, their needs or their wishes.
That is DIRECT discrimination in the hands of those who should be protecting this group — not exploiting them. These mantras have provided the ammunition for the use of the Disability Discrimination Act as a weapon ,
and not a safeguard, for people being discriminated against, either directly or indirectly, by unscrupulous others.
Mary Walsh OAM, CPA, AIFS JP(Qual)
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https://pwd.org.au/wp-content/uploads/2021/12/PWDA-Language-Guide-v2-2021 pdf
FRNOTHING ABOUT US
WITHOUT US 2
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Mary Walsh OAM, CPA, AIFS JP(Qual)
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Using the Disability Discrimination Act as their weapon, and selectively using only those parts of the UNCRPD which suit their rights agenda, that mantra is now “Everything about us without us”
To these workers their local disability employment service is “not just a job — it’s their life”. Conversely, the city centric and professional advocates argue that “it is not “meaningful” employment, in THEIR terms. Those who actively campaign for “real jobs for real wages” fully understand, as proved by the statutory industrial relations agencies, that if creating mass unemployment to achieve THEIR “advocacy” vision of social reform, is the
price that has to be paid — by those too vulnerable to voice their wishes, then so be it.
Mary Walsh OAM, CPA, AIFS JP(Qual)
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Mary Walsh OAM, CPA, AIFS JP(Qual)
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This history is more fully explained in attachments but it is crucial to understand that the Disability Discrimination Act desperately needs reform, It has become a tool that has been weaponised against the very people it is meant to help.
Nowhere is that more evident than in the most recent media release by the Disability Discrimination Commissioner and (supposedly) defenders of human rights, choice and control
https://humanrights.gov.au/about/news/media-releases/disability-discrimination commissioner-urges-qld-govt-scrap-plans-build
https://www.abc.net.au/news/2023-10-25/royal-commission-closing-special
schools/102981714
I make these comments as the mother who represented the ADE workers and their family carer/advocates in the former AIRC, the later Fair Work Commission, Federal Court and Administrative Appeals Tribunal over the industrial wrangles from 2004 to 2023.
I have no formal legal qualifications but without family advocacy these workers, whose disability robbed them of self-advocacy or legal competency skills would have had NO representation in the courts of the Australian legal and justice system.
Families banded together and personally funded all the costs associated with having no
resources, other than the bedrooms of their homes Pe]
Mary Walsh OAM, CPA, AIFS JP(Qual) 7
Mob i i!
[2015] FWC 7134
ay Poecenee
FairWork
STATEMENT Commission
Fair Work Act 2009
s.160—Variation of modern award
United Voice; Health Services Union
(AM2013/30)
DEPUTY PRESIDENT BOOTH SYDNEY, 15 OCTOBER 2015
Progress in conciliation.
{1] In December 2013 United Voice and the Health Services Union made an application to the Fair Work Commission to vary the Supported Employment Services Award in relation to the setting of wages for employees in supported employment. These employees are employed in Australian Disability Enterprises.
[2] In June 2014 a Full Bench of Commission referred the application to conciliation before me.
[3] The parties represented in the conciliation include the unions, the ACTU, National Disability Services (NDS), Australian Business Limited (ABL), disability advocacy representatives, Australian Disability Enterprises (ADEs) and representatives of parents and carers.
[4] These parties have attended conciliation, with the Department of Social Services observing, throughout 2014 and 2015.
[5] During conciliation and between sessions the parties have exchanged views and undertaken intensive research in an effort to reach agreement on matters before the Commission.
[6] The parties agree that their shared objectives are:
a) A fair, equitable and non-discriminatory wage outcome to contribute to a living income for employees in supported employment;
b) Continued opportunity for employment in supported employment settings to build and maintain the self-esteem and sense of purpose of employees;
c) Sustainable employment opportunities in viable ADEs; and d) To provide security and confidence to employees, parents and carers for the future.
Mary Walsh OAM, CPA, AIFS JP(Qual)
The majority of ADE workers have an intellectual disability. Inclusion Australia is their Peak Body. They are taxpayer funded as a Peak Body funded to represent all people with an intellectual; disability and their families. They publicly claim to do so.
Mary Walsh OAM, CPA, AIFS JP(Qual)
Mob Emai
https://www.inclusionaustralia.org.au/wp-content/uploads/2022/04/ADE-research-brief
April-2022.pdf
Following the High Court Nojin decision, (and a detailed paper as part of this submission covers the historical facts which surround that legal exercise) the NCID was re-badged to , deliberately, remove any reference to intellectual disability as their national charter—
We Con Wovk
=e
Right Suppovt
Rather, the new direction was an alignment
with Inclusion International, focusing on ““nclusion” as the core function of the new organisational name. What was, historically,
We
\
~
Everyone
can work
Employment pathways for people with intellectual disability
ncid.org.au
national intellectual
council on disability
the Peak Body for Australians with an intellectual disability became
INCLUSION AUSTRALIA —
acting locally,…… representing nationally…..connecting globally
Mary Walsh OAM, CPA, AIFS JP(Qual)
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Mary Walsh OAM, CPA, AIFS JP(Qual)
Mob Emai
In practice Australian ADE workers in 2015 numbered approximately 20,000, of whom 75% (approximately 15,000) would have had an intellectual disability.
Mary Walsh OAM, CPA, AIFS JP(Qual)
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Mary Walsh OAM, CPA, AIFS JP(Qual)
Mary Walsh OAM, CPA, AIFS JP(Qual)
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Family carer/advocates funded all these costs. Accommodation was back-packer style — cheap and essential. Our resources were what I could fit in my brief case and carry the 4 blocks to the FWC Head Office — or wherever the sessions were being held in other cities.
All this came at deep personal, stressful, social and financial cost to our small family carer
network.
We as family carer/advocates for those unable to self-advocate and lacking legal competency are not disabled. Federal Government advocacy policy is embedded in
“de-differentiation” — one size fits all- theory.
We, their family carer/advocates were their only VOICE. We weren’t about to give up on them, even when those whose charter it was to protect and speak for them chose, instead, to discriminate against them and refuse them the advocacy which they were, organisationally bound to provide.
https://www.perthnow.com.au/news/business/activ-closes-supported-employment workshops-leaving-people-with-disabilities-to-lose-jobs-c-6824382
Mary Walsh OAM, CPA, AIFS JP(Qual) 16
the contribution of the funded advocacy network was two fold
Mary Walsh OAM, CPA, AIFS JP(Qual)
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Family carers lived all that worry before the Bench issued a directive that these
witnesses would not be cross-examined. One of the family carers, who was also a
legal guardian, had a heart attack from all the stress. ….What sort of organisation does that to members they are funded to protect
Mary Walsh OAM, CPA, AIFS JP(Qual)
Mob Emai
Mary Walsh OAM, CPA, AIFS JP(Qual)
Mob Emai
https://www.health. gov.au/sites/default/files/2025-07/national-disability-advocacy program-ndap-operational-guidelines.pdf
e No funded advocacy organisation would help these workers, even after the advocates and Unions appealed to the Federal Court against the final decision by the FWC and used their Peak Body advocacy resources to employ DESPICABLE legal tactics to stop the trial of the proposed new FWC wage system.
Named as a co-respondent to the advocacy appeal to the Federal Court we were obliged to lodge submissions through their legal portal. Those submissions had to be , compiled under Federal Court legal protocols .We also needed legal representation as that is a requirement for representation before the Federal Court.. We weren’t that, We could not afford to engage one for however many days the proceedings would occur
Mary Walsh OAM, CPA, AIFS JP(Qual) 21
https://pwd.org.au/contemporary-slavery
Contemporary Slavery
Ba Categorized In: News, Submissions
Letter to the Special Rapporteur on Contemporary Forms of Slavery
15 July 2024
PWDA sent a letter to the Special Rapporteur on Contemporary Forms of Slavery ahead of their visit to Australia. The Special Rapporteur is an independent human rights expert whose expertise is called upon by the United Nations to report on a specific theme, in this case contemporary slavery, including its causes and consequences.
PWDA is regularly involved in domestic, federal and international modern slavery (or contemporary slavery) law reform and policy processes. Our goal is to ensure that modern slavery prevention, detection and remedy measures are disability inclusive and uphold our rights set out in the Convention on the Rights of Persons with Disabilities.
Despite the global lack of research and data about the intersection between disability and modern slavery, there is evidence that people with disability experience modern slavery in Australia. We are particularly concerned about modern slavery risk in residential and employment settings
People with disability face a heightened risk of modern slavery in private and group home settings. Power imbalances between carers and people with disability, along with a lack of access to the community, contribute to the risk of modern slavery.
People with disability also face modern slavery risks in segregated employment. In Australia, people with disability can be employed in sheltered workshops, referred to as Australian Disability Enterprises (ADEs), where they are often paid a subminimum wage. ADEs usually offer manual labour work, such as warehousing, ‘picking and packing’, cleaning and laundry services.
Given people with disability face a heightened risk of modern slavery, it is crucial that modern slavery services and supports are accessible. Unfortunately, people with disability face barriers accessing modern slavery crisis accommodation in Australia.
Mary Walsh OAM, CPA, AIFS JP(Qual) 22
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The Disability Discrimination Act has been weaponised to achieve social change at the
deliberate disempowerment of the most disabled — for whom | have spent a lifetime trying
to represent.
My submission reflects the unspoken views of many, many Australians, especially those who live in regional Australia and are held hostage by city-centric professional advocates and organisational executives of Australian Disability RIGHTS Organisations (DRO’s).
Mary Walsh OAM, CPA, AIFS JP(Qual) 23
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Mrs Mary Walsh
SUBMISSION TO THE REVIEW OF THE DISABILITY DISCRIMINATION ACT
Based on the information, history and recorded facts contained within this submission the following Conclusions and Recommendations are provided.
CONCLUSIONS
-
The Disability Discrimination Act 1992 (DDA) has been weaponised against those who needed it most and for whom it should have provided protection
-
No one needs advocacy more than those who cannot self-advocate, lack legal capacity and have limited or no informed decision-making skills.
-
NOTHING ABOUT US — WITHOUT US should be ALL of us — not a select group. This mantra has now become EVERYTHING ABOUT US — WITHOUT US.
-
Funded ADVOCACY in Australia has become ACTIVISM
-
Funding for advocacy in Australia is governed by the National Disability Advocacy Framework under the separate Operational Guidelines for the National Disability Advocacy Program (NDAP). The history within this submission brings into question the use of funding under this framework and these guidelines for the cohort for whom the submission is provided.
-
The identified cohort within this submission are the core cohort of the National
Disability Insurance Scheme (NDIS)
-
The Framework for the NDAP is a commitment to ensure that all people with disability across Australia have access to effective advocacy services.
-
The policy of de-differentiation (one-size-fits-all) has ensured that Australians with the most profound disability have not just been left behind .They have been deliberately excluded.
-
Preaching inclusion and practising exclusion breeches the most basic human right of choice. It has ensured that those most in need of inclusion are the victims of controlled choice as determined by advocacy networks funded, and publicly claiming to represent them, their families and carers.
1|Page
Funded advocacy agencies are not permitted to deny advocacy to one section of their membership — to the identified disadvantage of another section of their own membership
The cohort for whom we advocate and for whom this submission is provided have been denied justice and equality before the law
Life-time family carers have been deliberately dis-empowered to ensure that supposedly independent advocacy is substituted
Conflicts of interests with family advocacy are usually easily identifiable but those of supposedly independent advocacy are not obvious. Independent advocacy does not exist because we all bring our own nature and nurture influences to the table. Professional advocacy is what it is. It is a job
Professional advocates do not have to live with the results of their decisions — if any long term detriment is inflicted. That gap is usually filled by family or a family led support group — which is always unfunded.
Establishment of, and funding for a dedicated Family Peak Body would have balanced — or at least mitigated the detriment documented in this submission for this cohort
The deliberate exclusion of this core cohort from access to advocacy by the funded advocacy network, coupled by their refusal to accept family carer advocacy as an alternate source, is discrimination against the most vulnerable members of these funded advocacy groups.
Deliberately excluding the lived experience of family carers when that lived experience demonstrates their disabled family members need services other than mainstream education and/or supported employment, is discrimination
This refusal of advocacy breaches the UNCRPD commitment theme to leave no one behind.
Whilst low expectations of families are blamed for segregated services — the wider community, especially business for-profit enterprises (mainstream open employment) reflects a wider community stereotype which cannot be broken down over-night
2|Page
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Radical actions, such as those proposed by the split recommendations of the Disability Royal Commission in response to the demands of national advocacy, will leave our most marginalised (the cohort on whose behalf this submission is provided) further marginalised, personally and in their local communities.
-
In a rough storm — such as the current upheavals now rocking the disability sector(industry) — plotting and steering the ship with increased ballast to ensure a smoother and safer passage will provide a better and safer journey’s end. It will guarantee ALL passengers receive the benefits of equity, justice and sound helmsman-ship. That increased ballast should be provided by a dedicated family peak body for this core cohort — in accordance with years of recommendations and independent reports.
3|Page
RECOMMENDATIONS
Based on this submission, the material provided in substantiation of the outcomes and the conclusions derived therefrom, the following recommendations are made in the interest of good governance, of equity and of justice for the core cohort against whom the existing DDA has been weaponised.
- The revised DDA ( Disability Discrimination Act) should ensure that separation is discrimination - only when it is forced — not
personally a matter of choice.
- The revised DDA must ensure that complaints pertaining to housing, education and/or employment have exhausted ALL grievance mechanisms available through their respective industry regimes.
They should also be obliged to prove an unsatisfactory outcome from their efforts - BEFORE a claim of personal individual discrimination is accepted.
Such a requirement will prevent a further claim against the new SWS, because it will only be a matter of time. Proven processes of gaming the system are usually repeated unless that system is strengthened to ensure true equity and justice prevails.
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Final Report
Volume 7
Recommendation 7.14 Phasing out and ending special/ segregated education
Commissioners Bennett, Galbally and McEwin recommend:
a.
The Australian Government and state and territory governments should recognise that inclusive education as required by article 24 of the Convention on the Rights of Persons with Disabilities is not compatible with sustaining special/segregated education as a long-term feature of education systems in Australia.
As part of the National School Reform Agreement 2025-2029, the Education Ministers Meeting should agree to:
- the phasing out of special/segregated education
-
no new special/segregated schools being built or new special/segregated classes or units being included within schools from 2025
-
a process for work on milestones and activities related to ceasing special/ segregated education by all jurisdictions.
As part of the National School Reform Agreement 2030-2034, the Education Ministers Meeting should agree to milestones for phasing out and ending special/ segregated education settings and financial penalties for failing to meet these milestones, including:
-
no new enrolments of students with disability in special/segregated schools from 2032
-
no new placements of students with disability in special/segregated units or classes from 2041
-
no students remaining in special/segregated schools by the end of 2051. The Education Ministers Meeting should update the Roadmap to Inclusive Education and Australia’s Disability Strategy to incorporate the milestones and actions to phase out and end special/segregated education settings included in the National School Reform Agreement 2030-2034.
The Australian Government should consider the design of a ‘Transition Fund’ under the National School Reform Agreement from 2028 to provide discrete funding to schools that require additional support as part of their transition journey, with clear performance and reporting requirements.
Consistent with phasing out and ending special/segregated education, states and territories should implement the following recommendations:
24
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability: Final Report
when no students are in special/segregated schools, the sunsetting of: ° measures to prevent gatekeeping (see Recommendation 7.1)
° provisions to facilitate the engagement of students with disability enrolled in special/segregated schools with students and activities of mainstream schools (see Recommendation 7.4).
to prevent stigmatisation and segregation of students with disability, ensure the careers guidance and transition support program for students with disability (see Recommendation 7.5):
° _ is delivered alongside careers guidance for students without disability
° has clear rules that no student with disability can be referred to work experience or employment through Australian Disability Enterprises.
Recommendation 7.15 An alternative approach
The Chair and Commissioners Mason and Ryan recommend:
a. State and territory educational authorities should implement the following measures:
wherever practicable locate new non-mainstream schools (that is, schools that enrol exclusively or primarily children and young people with complex support needs) and relocate existing non-mainstream schools within or in close proximity to mainstream schools
create partnerships between mainstream and non-mainstream schools as a means of encouraging and arranging regular interchange between groups of students enrolled in the schools
facilitate to the maximum extent feasible participation by individual students and groups of students enrolled in non-mainstream schools in educational, cultural, sporting, recreational and celebratory activities with their peers in partnership with mainstream schools and other educational institutions
arrange for students in non-mainstream schools, where practicable, to participate in classes and educational activities with their peers in mainstream schools
establish programs for students enrolled in mainstream schools to participate in activities with their peers in non-mainstream schools
Volume 7: Inclusive education, employment and housing
25
provide, where appropriate, for concurrent enrolment for individual students in both mainstream and non-mainstream schools
assist non-mainstream schools to facilitate where appropriate, the transition of students with disability, particularly those with complex support needs, to mainstream schools, whether on a full-time or part-time basis
provide assistance to mainstream and non-mainstream schools in understanding the strengths and skills of students with disability for post school transition, including assistance in planning and preparing for further study and training
ensure non-mainstream schools encourage and support students with disability completing their education to seek and obtain employment in the open labour market, rather than in Australian Disability Enterprises or similar environments.
b. The National Disability Commission (see Recommendation 5.5) should conduct or arrange for a comprehensive review of progress towards providing inclusive education for children and young people with complex support needs. The review’s assessment should include the matters we have identified.
FINAL RECOMMENDATIONS BY THE DISABILITY
ROYAL COMMISSION ON INCLUSIVE
EDUCATION AND EMPLOYMENT WERE NOT
UNANIMOUS.
EMPLOYMENT IS COVERED ELSEWHERE -— THIS
IS THE INCLUSIVE EDUCATION COMMENT
WITHIN THIS
“FURTHER MOTHER’S MESSAGE TO CANBERRA”.
26 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability: Final Report
5
The Inclusive education debate has a long history. My involvement in it began when I had to advocate for the right of our son to have access to public education before he was 8 years old. Mainstream education did not meet his needs (covered elsewhere).
Much of the existing “rights at all costs” campaigning emanated from Queensland – the original embryo of the current national Our Voice Australia.
BUNDABERG fam ilies will take part in the State’s first rally to ad dress the needs and is sues of those caring for intellectually disabled people.
Australian Parent Ad-
vocacy national secretary and Bundaberg parent Mary Walsh said families and carers would un ashamedly place the issue of intellectual disability very firmly on the public agenda.
“We are stumbling around in the dark and we are desperately trying to find the light,” Mrs Walsh said yesterday.
She said families were sick of the attitude dis played by many policy makers that intellectually handicapped people should remain as “hidden faces”.
Mrs Walsh said the ral ly, which she hoped would attract about 1000 people, was not intended to be anti-government but was more an “anti policy” stand.
Tracey Prasser
“Queensland is one of the few States that has, to date, been relatively free of demonstrations by intellectually disabled people and their fam ilies,” Mrs Walsh said.
“Sadly, Queensland families must be feeling rather desperate to make such a public statement but we have had enough and are begging to be heard,” she said.
Mrs Walsh said a range of issues would be addressed at the Roma Street Forum rally, in cluding concerns about insufficient resources and funding, the lack of choices available to intel lectually disabled people and their families and the chronic lack of consulta tion.
“Families are not be ing genuinely consulted. Their only choice is which waiting list they should put their names on,” she Said.
“The Queensland Government’s commit ment to resources is be low the national average.
“Crisis situations exist in accommodation, re spite, post school options and day activities.
“And now the Govern ment has begun to de-in stitutionalise the system which in effect is turfing
severely disabled people,
many of them whose families can not take care of them, out on to the street.” a,
She said the education system had reached satu ration point.
“I believe people have a right to be valued for themselves but we also have to remain realistic about their particulars needs and require ments,” she said.
“These people can’t just be subject to the whim of the government and we need all the pub lic support we can get so the powers that be will fi
nally listen.”
x
7
This culminated in a public rally in Brisbane to try and establish a more balanced process and resourcing to the then implementation of the Wolfensberger principles in that state. The de-institutional process had led to the literal “dumping” of profoundly intellectually disabled family members in communities far from support facing sometimes very hostile communities who had never been consulted.
The “rights at all costs” campaigning was well ingrained in Queensland – and no one was listening to either the families or the teachers as Anti-Discrimination cases were piling up before the Tribunal.
Teachers, and their Union were being accused of being “evil”.
One case (The Birkdale Case) took centre-stage as a test case for a student whose suspension from a mainstream school had led to a “test” case on the question of what constitutes “Hardship”, and to what extent does that remove discrimination against the school and teachers involved.
That was 1995 – and nothing has changed 30 years later. It has just gathered speed, and momentum. As my “Further Mother’s Message to Canberra” exemplifies, there have been many casualties along the way .
The non-unanimous Disability Royal Commission recommendation on Special Education is included to ensure the context is accurately presented. It provides a further dimension to the continued refusal of the Commonwealth to provide a dedicated voice for this group of people in the development of Advocacy policy and it’s “one-size-fits-all” underlying core principle.
The text of the Action Day” strategy is provided here-in so interested parties can draw their own conclusion about the actions of funded activists that day.
The supported employment debate and history is a separate and well documented part of this overall “message” to Canberra- and provided here-with. Also hereunder is the funded
advocacy Action Day text and mischievous strategy of their networks of that day,.
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12
Included in this “inclusive education” part of my Message to Canberra is the media about
the Birkdale case.
As previously stated the Discrimination Tribunal, on the facts of this case, supported the suspension and found it was not a case of discrimination, under the Disability Discrimination
Act. (DDA)
“Inclusion-at-all-costs as a blanket policy, based on rights, does not recognise individual need” - Joint QTU-Australian Parent Advocacy
statement”.
Compiled by Mary Walsh, Community Advocate, as an integral part of my “Further Mother’s Message to Canberra’, dated February, 2025.
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The Facts about the Business Services Wage Assessment Tool
The BSWAT
Part 5 - the Final Part of a 21*. century Mother’s Message to
Canberra
Why Good Policy should be Good Politics
The history of the BSWAT (2005-2015)
PREDICT FUTURE
BEHAVIOUR
THROUGH PAST BEHAVIOUR
This example of past behaviour could be challenged by the advocates, who created this somewhat disreputable chapter of disability history. The facts
speak for themselves.
This final element of a mother’s message to Canberra challenges the thinking of all Australians and publicly questions
(1) The history of past behaviour based on public evidence,
(2) Did the taxpayer funded advocacy network “game the industrial system” by using the rules and procedures meant to protect a system to, instead, manipulate that system, for their own outcomes? and
(3) Does Past Behaviour predict Future Behaviour, given the recent failure of “The Voice Referendum”, the
non-unanimous Disability Royal Commission
recommendations on special education and supported employment, and the 20 year industrial journey we have now documented here-in.
- The History of the Industrial Journey 2003 – 2023) Questions which I raised within both the Federal Court and the Fair Work Commission, as the representative of Our Voice Australia, for the Australian Disability Enterprise (ADE) employees, are confirmed in formal transcripts. Those questions remain unanswered.
They are legitimate questions about due process and the use of Commonwealth funds.
Where possible, public transcripts used as the basis of fact, as provided, have been included in the appendices in this Message to Canberra. In other cases they should be available from the Government Library.
This part of my Message to Canberra builds on the history provided earlier. As the
Disability Reform Package and Disability
Standards were embedded into Commonwealth Policy in the late 80’s - 90’s, work commenced simultaneously on a Commonwealth Wage Tool to provide better wage outcomes for workshop employees.
As the transcript confirms, that wage tool was
the Business Services Wage Assessment Tool
Ce
Sr
eS a —— —— a ——— _ ——— —— —_ ____ J ——— —] — —_
was also supported by the services involved in its initial trialling process involving 1000 workshop employees.
The Federal Government, sadly, has now followed their funded advocacy movement by embedding the “one-size-fits-all” (de-differentiation) principle in as the core base of their disability and advocacy policies.
– Oct 2004
We provide, at this stage, excerpts from the October 2004 Hearings
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Realistically, lf “open employment” options, even then, were so abundant, at that time, then the advocacy movement simply had to find an alternative, better paying work option with a mainstream business, for the employees being used as the live applicants in their pending industrial cases to force workshops to use the SWS wage assessment tool.
If work and pay conditions on any site are so bad, so “discriminatory” and so unacceptable for individual workers, then the role of the advocates was to find them alternate employment and conditions — not “game the system” for the advantage of one or two - to the disadvantage of the many.
These facts lay the groundwork for the introduction of the BSWAT
The facts are the facts.
Independent readers and Opinions based on facts - and history - have a greater
slicnsil tialieiitiidimmenl interested parties can draw their
own conclusions about the actions of the then advocacy movement JJ
Being well informed generally
helps in drawing factual
conclusions- on any topic so we provide the facts to assist with informed decision-making
5.2 Did the advocacy network “game the industrial system” by using the rules and procedures meant to protect a system to, instead, manipulate that system, for their own outcomes? The historical facts
.
In hindsight, for all, perhaps “off the record” might not have been the way for the finalisation of the proceedings, but all parties were accepted at face value for their good intentions, allowing for personal differences.
Our (Australian Parent Advocacy – later Our Voice Australia) concerns were the need
To retain an independent monitoring role for the implementation of the BSWAT, given that all new systems will, generally, need “tweaking” on application. This was
especially true for workshops given that, unlike ordinary business, they had to create jobs for their workers, which matched the capacity of their workforce. “Open”
employment (mainstream business) on the other hand, has an existing business and needs workers to meet their job situation — not vice versa.
e Foran assurance that worker grievances were adequately covered by documented processes within the award. Unionisation for these workers was not always an available option, for many, and obvious reasons. Parental representation for them was, increasingly, being attacked by the advocacy movement.
e The competency tests for BSWAT wage assessment delivered a nil result, if there
were any wrong answers to the questions asked.
All these matters, and others, were honestly raised and freely discussed within that “Off the record” adjournment. We were assured that the Commonwealth would monitor outcomes over time and report to stakeholders, and that parental representation was covered within
the grievance processes of the Award.
The “competency” issue, if it raised itself in the application of the BSWAT could be resolved
by a simple Application to Vary. [I sd
From that “off the record” adjournment, this final transcript was entered into the formal record. There weren’t any objections by J or any of the other parties. The full un annotated copy is provided as a separate appendix.
We have notated this excerpt. It is page 32/33 of the formal transcript. a accepted the formal response of the Commission that “there were sufficient safeguards within the system to deal with” any issues which might arise in the application of the BSWAT at work sites.
The Commissioner made particular mention of the important “issues” brought to notice by
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The full transcript confirms the “competency” issue in more detail. The Commissioner’s final address states that “in the event that there is some difficulty in application, I think they’ve sought to be taken up by the parties”.
So, the BSWAT became an industrially approved wage assessment tool, developed by the Commonwealth for use in workshops (business services).
As the President of Australian Parent Advocacy I felt the goals which had driven the creation of this national family advocacy body had been put in the public domain, if not reached at least in 2005. Our son (an ADE employee for 25 years) passed away in July, 2004, before the legislated ADE industrial outcome. The increasing demands of my aged mother (then 95years old), still my primary responsibility and living with us, meant I needed to focus more on her needs, and that of our surviving family members.
There is a price paid by all family members when the needs of any one member impact on the family unit. This is multiplied if profound intellectual disability needs are compounded by the needs of the dependent elderly family member – who also resides in that family unit.
So Australian Parent Advocacy morphed into the Carer Alliance with the existing membership base and a new executive. It was done with the hope that political affiliations would provide better outcomes for the membership. (2006-2013).
Throughout this period the advocacy movement gained momentum.
As the earlier parts of this “message” confirm, the move from the medical model of disability to the social model, especially for the profoundly intellectually disabled, moved ahead with supporting legislation to ensure future services improved on delivery and support.
They were laudable goals by the Government of the day.
Other elements of that legislation and Federal initiatives to put the theory and commitment on a solid legislative base were consolidated by Australia’s introduction of the Disability
Discrimination Act, 1992
https://humanrights.gov.au/our-work/disability-rights/disability discrimination#:~:text=The%20Disability%20Discrimination%20Act%201992, places%2C%20 because%200f%20their%20disability.
and the signing of the United Nations Convention of the Rights of People with a Disability (UNCRPD) in 2008.
httos://www.dss.gov.au/our-responsibilities/disability-and-carers/program
services/government-international/international-participation-in-disability issues#:~:text=The%20Australian%20Government%20ratified%20(agreed,rights%200f%20p eople%20with%20disability.
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The full transcript of the 2011 Federal Court Case is available at https://jade.io/article/253480
It is well known to successive Federal Governments, in both the House of Representatives and the Senate. It continues to be lived by the most vulnerable group of Australians generally tagged as “people with a disability”. That’s those with moderate to profound intellectual disability and complex needs, by their families and carers, because (in disability) “one size DOES NOT fit all”, any more than it fits all Australians (be they disabled or able bodied) no matter where they live.
This has already been recognised by Australian social policy and the funded Peak Body existence for specific types of disability. Those who are Deaf and/or Dumb. (Deafness Forum Australia) Those who are Physically Disabled (Physical Disability Australia) Those who are blind (Blind Citizens Australia) Those with varying sexual preferences (LGBTIQA + Health Australia) Those who are culturally and/or linguistically diverse (CALD) National Ethnic disabilities (NEDA)
First Peoples Disability Network (FPDN)
Women with Disability (WWDA) Foster Families (Families Australia)
Carers Australia includes Young Carers (Young Carers Network)
The following site provides a full and comprehensive list of Federally recognised disabilities. Interestingly, our son’s randomly genetic disability is not one of them . https://www.dss.gov.au/our-responsibilities/disability-and-carers/benefits-payments/carer-allowance/guide-to-the-list-of-recognised-disabilities
https://www.dss.gov.au/disability-advocacy/national-disability-advocacy-program
In addition to this myriad of funded and advocacy disability organisations which exist to defy the “one size fits all” principle governing other types of disability, there are also specific national bodies for those specific disability organisations.
These include The Australian Federation of Disability Organisations (AFDO)
The Disability Advocacy Network Australia (DANA)
Children and Young People with Disability (CYDA for 0-25yrs). These are only a few of the nationally funded bodies which recognise the specific impacts of specific types of disability. Their funding and status defies the Federal Government policy
for people with different levels of intellectual disability, where “de-differentiation- one size fits all” recognises ALL intellectual disability as being mild to moderate.
https://pwd.org.au/wp content/uploads/2021/12/PWDA
Language-Guide-v2-2021.pdf
You will find that the terminology of “intellectual disability” is increasingly being euphemistically now termed:
Neurodevelopment Disorders
Neurological Disabilities.
This then gets conflicted with Autism, the Autism Spectrum Disorder (ASD), intellectual disability and mental health, as portrayed in general media. Confusion helps generate the desired mild to moderate social image marketed to the Australian appetite for “a fair go” for all.
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Any reasonable and objective person would/should ask If it’s not their family carers, once they are of chronologically legal age (18 years)- then WHO does speak (nationally) for this group of marginalised Australians.
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#EndSegregation
People with disability are not second class citizens.
T
“God help us – family carers would not be needed to advocate for them”.
5.3 Does Past Behaviour predict Future Behaviour, given the
-
recent failure of “The Voice Referendum”,
-
the imbalance of power for those with the most severe intellectual disability
-
the non-unanimous Disability Royal Commission recommendations on special education and supported employment,
-
the documented advocacy and 20 year industrial journey we have now provided to the community in our Message to Canberra .
5.3 (1) The recent failure of The Voice Referendum epitomises how out of touch policy makers are with the broader Australian public. It is instanced, for no reason other than it demonstrates, very clearly, how out of touch policy makers, and advisers, are with the rest of Australia. The ACT was the only State which recorded a YES vote. Many (outside the ACT) predicted this would be the result. The “de-differentiation” (one-size fits-all disability debate) is the same. We have never asked for constitutional change, only what successive Federal Governments have provided for every other type of disability and mental health classification – but not for the most profoundly intellectually disabled, who are most in need of advocacy
5.3(2)The obvious imbalance of power exists (i) Between employer and disabled employee (ii) Between those with cognitive impairment that is mild to moderate and those, whose impairment is severe to profound. (iii) Between those who can self-advocate and those who cannot. (iv) Between different types of disability - i.e physical, sensory and acquired. (v) Between those who head up advocacy organisations as a professional career – and those who are victims of organisational mission statements and objectives which are formulated by professional career advocates and those with disability able to self-advocate and pursue their personal career options. (vi) Between urban/metro disability and regional Australian disability where the tyranny of distance and lack of supports add another dimension of imbalance (vi) Between youth and maturity, especially with chronological ageing which Is not accompanied by intellectual legal capacity.
5.3(3) The non-unanimous Royal Commission reports were influenced by the disabled Commissioners, but they have listened to and not lived, the lives of those with moderate to profound intellectual disability, and the imbalances of power associated with this level and type of disability.
5.3(4) The 20 year industrial journey is factual. It is but an extension of the 20 years of community advocacy, systemic change and political reform which preceded it — from the late 80’s to 2003. The move from the medical model of disability to the social model has benefitted everyone with a disability, except, perhaps, those for whom the medical model was, initially, established. This group of disabled Australians are at the bottom of the rung of disability — socially, and have no balanced representation by Government funded advocacy. Extensive research and reports have always confirmed the need for family advocacy, because of the lifetime needs of this group of vulnerable Australians.
The Advocacy Review in the 1999 Report referred to previously, recommended the establishment of a peak body for Family Advocacy. They did so because advocacy organisations then in their infancy, were delivering their services, just as they are now, based on their own organisational philosophies, being formulated by those with lesser debilitating types of disability.
04/10/2022, 00:30 Angry family carers lose their voice as minister sits on critical report
The Svdnev Morning Herald
National
This was published 17 years ago
Angry family carers lose their voice as minister sits on critical report
March 30, 2005 — 10.00am
A report on carers that contains angry anti-government sentiment has been withheld from the public for nine months despite a commitment from the Federal Government to release it.
The issues paper was prepared by the National Family Carers Voice, an advisory group set up by the Federal Government in 2003 to provide it with “grassroots level” information on the needs of carers.
The paper, obtained by the Herald, contains uncensored quotes from people caring for severely disabled relatives.
“Some of these quotes are heart-rending, some pleading and some angry,” the paper says, “yet all … give an indication of the level of anguish, hurt and frustration that is felt by many family carers.”
The comment believed to have caused particular pique in the office of the Minister for Family and Community Services, Kay Patterson, is from a 55-year-old woman who cares for her intellectually disabled sister and her 80-year-old frail mother.
“There are unlimited funds for detention of illegal immigrants and the Iraq war while disabled Australians are f—– over by our Government,” she writes.
In the paper, dated June 2004, National Family Carers Voice says it does not necessarily endorse the content of all the quotes but supports their inclusion because they provide an “authentic and valid voice’.
Based on a national survey of 1100 carers, the issues paper says government support has been minimal and family carers have carried the “ever-increasing care burden alone.”
The carers of the disabled, caught between federal and state government responsibilities, are a particularly desperate group
The paper describes the problems encountered. But it is the “uncensored comments“ under the headline “What would you like to discuss with the Minister?” that convey the voice of carers.
On the issue of long-term accommodation, a 50-year-old woman with a 20-year-old son with severe intellectual and physical disabilities writes: “I would like to know that he is settled
https /www.smh.com.au/nationaVangry-family-carers-iose-their-voice-as-minister-sits-on-critical-report-20050330-gdl0yt html V2
The National Family Carers Voice in 2004 reinforced it, but 20 years later nothing has
changed.
04/10/2022, 00:30 Angry family carers lose their voice es minister sits on critical report
before anything happens to me and that he is happy but your waiting list is already a joke … Please do something now.“
The mother of a 23-year-old disabled daughter says: “The Federal Government has negated its responsibilities to work with states on addressing services and issues for people with disabilities … and traded us in for savings for the Treasurer.”
Another carer says: “The Centrelink system is a joke.”
A 63-year-old woman whose son has Down syndrome writes: “Do we have to break down before the Government will do something to help us?”
A spokeswoman for Senator Patterson said the minister was waiting for a final report, expected in June.
The Herald has been told the Government had originally promised to release the issues paper but had given no guarantee it would release the final report.
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As a Government Minister Bill Shorten probably has the best understanding of the issues, for those with moderate to profound intellectual disability, their families and carers. than any politician from either side of the political spectrum.
However, politically driven activism, from YOUR side of politics raises that question of how good policy becomes good politics and what’s more – what will it cost ? And I don’t mean just dollars.
Seemingly, no one from either side of the political divide has been prepared to pay the price for the last 3 decades and have, unconscionably, left the price tag to be picked up by family advocates and carers.
Politicians know the families will do that — out of love. Just as they have done for aeons, just like they, as politicians, would do if was THEIR child, or family member.
The middle of the road is a very un-comfortable place to be. It’s also very risky, whether that’s physically-or politically.
Metaphorically speaking, you are always at risk of being hit by a “bus”
That can hurt
The physical, emotional, financial and social rehabilitation can be quite costly and lengthy. Just ask the family advocates. They’ve been living it for years.
Crucially “buses” can come in all different shapes, sizes and formats. With to-day’s advances in technology and artificial intelligence, they can even be driverless, so “blame” cannot be apportioned. Clever marketing takes care of all that.
Undoubtedly good policy CAN be good politics, but seems to have no contenders other than the family carers.
However Australian disability policy does not recognise family carers as legitimate stakeholders because they, as lifetime carers of their moderately to profoundly intellectually disabled adult child,
Those with acquired
mK ‘Labor is at its best when we are the party of ambition and brain damage are
compassion, when we use the power of politics to stand up for recognised and funded
those who were denied power by the circumstances of their as a dedicated Peak
3 Body, by the Federal birth. * Excerpt of Media with the announcement of Minister Bill yey Shorten’s retirement at the the next Federal election - Government
September, 2024. Its what drives our entire government, it’s what continues to
drive me every day.”
A ?
spare was still more work to be done, the 57-year-old said, but he
was proud of everything he had already achieved.
Those who have the most severe to profound denial of power resulting from the ’circumstance of their birth” are deprived of family advocacy. They are the victims of a “one-size-fits-all” Federal disability policy, according to the ideals and philosophies (not real need) of the funded advocacy networks and their taxpayer funded staff.
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Who are Our Voice Australia.?
Our role in these
proceedings — and
There are more than 700.000 Australians with intellectual before the Fair Work disability and/or complex and associated needs. There are more
than one milion family members who supoort them. Commission is, and Our Voice Austraiia is a voice for those who cannot sell-advocate has been, as www. our’voiceaustralia.org.au advocates for our disabled family ¥y BAG sche members — who form
part of those 700,000 vulnerable Australians — with intellectual disability and complex needs. Our web-site is available @ www.ourvoiceaustralia.org.au. - for further information,
Our web-site is unfunded and, as a group we have some 892 members working in our ADE’s and about 1200 family carers supporting them. About 1/4 of our membership has no access to technology and contact has to be by way of hard copy/postage. With nothing other than meagre personal resources we are unable to efficiently service our members, keep our web-site updated and are denied any access into policy formation by successive Federal/State Governments who argue that current Peak Bodies represent us. Obviously they don’t.
It is critical that all parties understand our role as “family carers”. We provide this glossary as a guide. The generic term “Carer” does great dis-service to the unpaid role of family carers, and there is confusion between “carers” and “disability support worker’.
“life-time” carer - Cradle to grave -24/7/365 days a year - for a lifetime “time-of-life” carer Aged care — average 5-10 years
“term-of-life” carer A traumatic illness or trauma at some stage of life to a healthy person
“foster” carer A choice by a 3™. party — with an ability to opt out if the going gets tough “young” carer A child caring for another disabled family member . “kin-ship” carer Grandparents or extended family care if parenting options unavailable
“sandwiched” carer A family carer providing care for an aged AND a disabled family member
Increasingly the role of “carer” is becoming more distorted by generalisations like “wild-life” carers, “reef “carers - and a growing list of alternative people/places and environments in need of specialist care or services.
In these proceedings — and in most cases — we represent “life-time” carers- but a couple of our submissions to the Fair Work Commission are from “kin-ship” carers —i.e. siblings, following the deaths of ageing parents.
We ask that our lived experience of providing “life-time” care for our family members with an intellectual disability is given due weight in what is now becoming a concerted agenda by the Australian funded advocacy network to promulgate “segregation is discrimination”. We are not professional advocates working in the field on disability. This is our lives.
#EndSegregation
People with disability are not second class citizens.
www.dpoa.org.au/endsegregation
SYMPOSIUM ON 2030 AGENDA
FOR SUSTAINABLE DEVELOPMENT
*“LEAVE NO ONE BEHIND”
Segregation is discrimination only if the human
right of CHOICE is removed. | live in a gated
community. More and more people are making that choice. Segregation is only discrimination if
the human right of choice is removed. | received
my education at an all girl’s schools. One of our sons was educated at an all boys’ school
We have segregated academies of sport, of
culture, of art, music and many more.
The United Nations Theme (2017) was “leave no one behind . The cohort for whom we advocate are not just being left behind — they are being deliberately excluded.
Disability rights organisations are funded by taxpayers. They have an obligation to represent ALL their members — not just some — but ALL.
It has to stop
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Learning from the past — shaping the future
Open Letter to Minister Butler,
Australian taxpayers, Families PWD A C alls for a and Australian communities
Radical Response to
rerefamivlednatonalPeakseayir | Kd Segregation and
intellectual disability
https://www.ourvoiceaustralia.asn.au D iS ty rl Mm in atio n
it’s vital that those shaping that future
As | hand over the baton of regional co-
know the ® Categorized In: Media Releases
Argy-Bargy REAL Thursday 14 September 2023
\M-. history. People with Disability Australia (PWDA), the country’s peak disability rights and advocacy > Th organisation, is calling for urgent Government action to end the segregation of people with disability
- e ey ahead of the release of the Disability Royal Commission’s final report. cannot
PWDA’s call comes ahead of tomorrow’s final ceremonial sitting of the Disability Royal Commission (DRC), afford to which laid bare the rampant discrimination and harm that occurs when people with disability are excluded from our schools, workplaces, housing and wider society.
get the
Nicole Lee, President of People with Disability Australia, emphasised segregation enables the violence, future abuse, neglect and exploitation of people with disability. wrong. The
history of the legal “argy-bargy” forced on our most vulnerable citizens by advocates and Federal disabiity policy is a must-know for all Australians. Advocacy is Federally funded and provided by Disability REPRESENTATIVE Organisations (DRO’s or Peaks). In more recent years they’ve become Disability RIGHTS Organisations. They have called for a “RADICAL” response by the Federal Government to the recommendations brought down by the Disability Royal Commission. The two most “radical” were non-unanimous and led by the commissioners with disability — being physical, hearing impaired, blind and a medical condition All of these disabled Commissioners deserve accolades for their brilliantly successful professional careers- but they do NOT have an intellectual disability. The recommended closures of the
Australian Special
School system and supported employment enterprises (ADE’s) in favour of only mainstream education and business is extremely RADICAL.
When made aware of it most
Australians agree.
It’s complex- so this open letter provides that history. You can then form your own opinion, based on the facts
Because disability has different impacts there are dedicated and funded groups to recognise those differences. Known as Peak Bodies there are separate “Peaks“ for the Blind, Brain injured, Physically Disabled, Hearing Impaired, Culturally and Gender Diverse, First Nations People, Down Syndrome and many more. Cognitive impairment is classed as Intellectual Disability. Our Voice Australia advocates for that cohort. Collectively we’ve all made great progress in the last 2 decades but we’re now at a crucial cross road, especially with supported employment, education and advocacy policy. No one needs advocacy more than those who cannot self-advocate. If your need for advocacy doesn’t fit the ideological goals of the funded Peaks for intellectual disability – then you will be denied advocacy.
Disability policy in Australia is also based on the “One- size- fits- all” social model of disability. That’s the basic tenet of the National Disability Insurance Scheme. Support needs are assessed using specially designed assessment tools This is creating enormous ructions as the Federal Government tries to steer this NDIS battleship back on course, survive the tsunami they created by not following the recommendation of the Productivity Commission back in 2013, and retrospectively deal with the massive swell of waves and disasters, the corruption by unscrupulous operators and the political discontent which they, themselves, have created.
Credit is given to the great progress made by the DRO’s in getting young people out of nursing homes (still a work-in progress), breaking down the large centre-based institutions and promoting specialist independent living options. Families have worked harmoniously with those goals and achievements. No one dsagrees with the ideals of inclusive education and employment but forcing job losses in supported employment by insisting (in colloquial terms) that “While -ever these places exist you lot will continue to use them- so they’ve got to go”- is not just radical, but callous.
The greater good is the high moral ground, but there is a higher personal cost- for the most severely intellectually disabled. Nationally that’s about 17,000 employees in supported employment. Those 17,000 employees are not just a number. They are real people. They have names, jobs they love, on-going support they need and they are a vital thread in the social fabric of their local communities. The further you go away from city-centric professional advocacy and into the regions, the more obvious is that thread. That’s especially so for Western Australia & Queensland – the geographically larger States.
The “argy-bargy”started back in 2004 when the Peaks objected to the introduction of a new wage assessment tool – known as the Business Services Wage Assessment Tool (BSWAT). It had been developed by the Commonwealth Government for use in supported employment because the existing Commonwealth tool – the Supported Wage System (SWS), was developed for use in open employment. It was never intended for supported employment. Supported employment in Australia has a dual purpose. Known as the “duality of focus” it is a Not-for-profit enterprise designed to deliver two outcomes – employment and social inclusion to balance the impact of disability. Workers in the ADE’s (Australian Disability Enterprises) must be on a Disability Support Pension (DSP), with its concessional entitlements. Their pension is adjusted once their income from other sources goes above a certan threshold. That threshold is adjusted regularly. This new BSWAT had been trialled on 1000 workers, was supported by the Unions, by the Chambers of Commerce,service providers and the sector, BUT the Peaks objected to it. They wanted the SWS, which was never meant for ADE’s. The Commissioners called for family/worker representation because of the lack of legal capacity for some of these employees. We were accepted in that role by all parties to the Hearings. The Peaks objected to the BSWAT because of possible “discrimination” and unfair wage outcomes for a specific employee for
2
whom they were advocating. Other parties— including us- shared these concerns about that particular element of the assessment tool. Neither the Government nor the then Australian Industrial Relations Commission (AIRC) wanted to
delay the legislation because of a perception which, if it did become a reality, could be easily solved by the existing
grievance mechanism in the Awa’. lll
a. It became the preferred assessment tool for about 8000 workers in Australian ADE’s over the next 10 years. In summary the Peaks instigated the following law-suits: to remove the BSWAT, force the use of the SWS onto the sector and claim compensation for workers assessed by the BSWAT since 2005. Nojin v Commonwealth — Federal Court [2011}FCA 1066 . Case by Nojin and the Peaks (AED Legal Centre ) claiming discrimination against Mr Nojin by the service provider using the BSWAT to assess his wage entitlements — dismissed Nojin v Commonwealth and Another — [2012]FCAFC 192 - appeal to the High Court by the Peaks against the dismissal in the Federal Court. It was successful by a 2/1 majority
The Commonwealth sought special leave to appeal the approval . It was disallowed. Those of us who were there when the BSWAT was originally industrially legislated knew there was a body of evidence which, it seems, didn’t get to the High Cout. That’s history and can’t be undone.
The legal process of a class action claim for compensation, backdated to June 2005 , was commenced by the Peaks The High Court approval made it illegal to continue the use of the BSWAT for the 8000 workers affected. Providers, backed by family carers lodged an application with the Human Rights Commission for a temporary exemption from prosecution for the continued use of the BSWAT whilst an orderly transition commenced. That transition was under the supervision of the Fair Work Commission, with statutory quarterly reporting by service providers to both the Fair Work Comission and the Human Rights Cmmission . With so many using it, there was a national shortage of qualified assessors to physically assess workers, on site, nationally. The temporary exemption provided the necessary time.
The Peaks were infuriated because there was to be no immediate cessation to use of the BSWAT. Neither would the providers be forced to use the SWS. They would be allowed to transfer to another industrially approved tool suited to their business needs. Most transferred to another industrially approved tool — not the SWS. The Peaks then lodged an appeal with the Administrative Appeals Tribunal (AAT) against the Commonwealth, the Human Rights Commission, the Providers - NDS (National Disability Services)- and Our Voice Australia represented the workers, providing assistance wth their families to lodge written submissions supporting the temporary exemption.
It was AAT 2016.0787 — in Sydney on 11 December, 2017. The Decision to refuse the Appeal was handed down in June, 2018 . During the
Hearngs Family carers
were deemed by the
barrister for the Peaks to have a conflict of interest. He protested on behalf of the Peaks that more weight should be given to worker submissions opposing the exemption than those of family carers supporting it because family carers were not workers and had family conflicts of interest.
By this time the ongoing mediation and conciliation process for a consensus of opinion with the Peaks on wage reform under the direction of the Fair Work Commission had broken down. The Peaks launched legal action in the Fair Work Commission with an Application to Vary the Award — outlaw all other wage assessment tools and force the SWS onto
the sector as the only industrially approved assessment tool for the supported employent enterprises.
Over time the FWC AM2013/30 morphed into AM2014/286. Again the court case launched by the Peaks against their own membership who didn’t agree with their organisational objectives for nothing other than open emoloyment and mainstream education, dragged on.
There are several notable issues which need to be recorded for Australians to understand why we are now forced to put out a family carer
SAVE OUR SERVICES
Our Voice Australia has been the national family lead Peak Body for people with moderate to profound intellectual dsability since 1989. The needs of this group are
different to those with mild to moderate intellectual disability. Family carers/advocates have a “lived experience” which has been deliberately removed from input and representation by the advocacy groups funded to represent our disabled family members. Removal of family carer advocates also removes the only dedicated voice for our disabled family members
Our VOICE Australia — is THEIR Voice. It now needs to become YOUR Voice
This open letter provides the history of our journey for this group of disadvantaged Australians especially in education and employment over 3 decades.
The history, as it was lived, provides some insight into why the Fair Work Commission made the decisions they made. This industrial case became one of, if not the longest running industrial cases in Australian industrial history.
The judges heard all the evidence, from all sides. They are the experts. They made their https://pwd.org.au/resources/language-guide/
decisions on the evidence provided by all parties!
The ADE employees were hauled off to court — by the advocacy groups funded to represent them. They refused to provide legal representaion for their own members who worked in their ADE’s because they believe work sites should be in the community — not providing specialised services from a separate “segregated” site. yy
Service providers couldn’t he| lll
a
The legal system is very adversarial. It’s THEM and US - with no holds barred.
The years of trying to provide a fair wage in an employment system for employees on a Disability Support Pension as well as the ongoing supports needed by this group of employees are recorded in the two cases on the Fair Work Commission web-site. This open letter provides excerpts but some original source documents are available for perusal at our booth in the exhibitors section of the conference. Other issues are covered in our presentation on Friday, 14“. November, 2025.
And so the wage case in the Fair Work Commission received the closing statements of all parties (we have included an excerpt from the Peaks) and was adjourned pending a future decision.
The decision , when issued , introduced a new wage system . It was a positive step forward proposing the use of the SWS as the base tool, and adding additional gradings to measure productivity of the individual worker. It was proposed that this new tool be trialled at selected sites, representative of the various types of product and busines activity undertaken by supported employment enterprises in Australia. The Commonwealth agreed to engaging an independent consultant
This excerpt provides some of the reasons for the FWC decision.
[359] We consider, having regard to our earlier findings concerning the social value of supported
rm employment in ADE’s, that the loss of employment which would occur consequent upon the mandatory use of the SWS would be a calamitous outcome. Numerous disabled persons and their carers have given
uncontradicted evidence that the loss of supported employment would result in social isolation, boredom,
financial detriment, a loss of skills development opportunities and a diminished sense of self-worth
amongst disabled persons, with a significantly greater burden being placed on their carers and other
family members. There is no evidence that this would be ameliorated by any compensating increase in
Pen INNS RSP HOM [2019] FWCFB 6179)
[360] It must be said that some of those in the AEDLC’s camp did not appear to fully share our level of concern about the future of the ADE sector should it have a very significant wage adjustment forced_ upon it. Mr Cain accepted that the ADE sector had a role to play, but he perceived this as being only to act as a transitional pathway for disabled persons to be placed in open employment. Mr MacFarlane opposed the ADE model outright, which he regarded as “segregated employment”. His views aligned with those of PWDA, which publicly advocates for a plan to close all ADEs and transition all ADE workers into open employment or, in the case of older workers, progressive retirement.
The Peaks then lodged an appeal against the decision with the Federal Court seeking to outlaw the proposed new
system and
: ’ ; , — “ ial of that Our Voice Australia agreed with and adopted the written submissions of the second, third and the trial o : system. Again the
fourth respon “ made some additional submissions bas i i . rth respondents, and e based on the experiences of its workers had no voice
members with family members employed in the ADE sector. In her oral address to the Court,
and no legal Ms Walsh emphasised that the Commission’s process had once been described by lawyers representation other involved as “argy bargy”. She emphasized to the Court that this “argy bargy” was about the than ours. You have
lives of those parents, family members and carers who make up Our Voice, and about the to be a solicitor to
, ‘ ; address the Federal “lived examples” of the debate about what wage structure should be implemented for Court — unless there
employees with a disability who work in ADEs. Her observations have, with respect, force, 5
and they underline why the Commission, in the circumstances, must be permitted to complete
its statutory task.
is unanimous agreement by the Full Bench that a lay person can do so. It was challenging. It was an unecessary
expense for families. it was a waste of scarce taxpayer funding. We had been roped in by the Peaks and the employees needed that voice. At our own expense — we were there
So — with the dismissal of the Appeal by the Peaks the trial went ahead . A final Hearing was schedued to receive the results of the trial and any suggested amendments by any of the parties
The class action compensation payment,launched by the Peaks following the industrual removal of the BSWAT had been successful with an agreed pay-out figure of $109m. It was proceeding in the background of the wage case- as referenced in this media release when the pay-out figure was agreed . This is included because it is relevant to the history, once you know the REAL history , as recorded in the formal transcripts of that 27“. June 2005 Case
Underpaid disabled workers to claim compensation from Government after Federal Court win
This was described by the barrister
aw } aT ee
“We will no longer have workers withintellectual _ disabilities working under the radar. It’s a huge advance
wage policy for workers in Australian Disability
Enterprises.“
acting for the Peaks as a David and Goliath battle.
Ours have akways been David & Goliath battles. The Peaks have always made sure of that.
Maurice Blackburn said ADEs would not shut as a result of the decision because the Commonwealth is responsible for payouts.
Perhaps part of the problem is
that it was always “the Disability workers, the National Disability Service and lawyers have
J Commonwealth” who would pay working to come up with a new tool through a Fair Work Commission process
as far back as June 2005
Equally it is still the Government (“govie”-money) at risk with the NDIS and with the new wage system which has been judicially forced onto the Peaks - unwillingly
During the course of the wage case the three Comissioners nN s made themselves available, maximum availability two days, to visit some ADE’s and also some successful open Your H ig hlig hts employment sites. Such arrangements would need to be ee schedued in. There were visits by the Comissioners to several DANA Ltd liked ADE sites in Sydney and surrounds. All offered different types
of products and activities.
PWD Australia (PWDA) @ @PwDAustralia
“Instead of supporting segregated employment, governments should be putting resources into creating genuine pathways to open or mainstream employment for people with disability” @TheresePWDA #auspol #disability @inclusionoz
The proposed visits to successful open employment sites became the subject of no less than 11 separate emails —
request for an extenion, then another extension of time until
Disability Groups Divided Over Support for Australian
we ran out of time. We were also keen to be involved in such a site visit. The best the Peaks could do was a wrtten submission from one such business
Disability Enterprises | PBA
Disability groups are split on whether Labor’s plan to direct government contracts to disabil… more
probonoaustralia.com.au
O1 te O7
During the course of the case our members in Western Australia, whom I had visited only months before, were victims of the ACTIV service provider collapse. . Some 756 jobs were at risk. Our team over there and the community came to the fore, providing support and assistance to all those affected. They also worked closely with the State and Federal Governments for a successful transition over time.
The Federal advocacy system which should have been supporting the affected employees remained silent and out of sight. They do not support any Government intervention or provision of taxpayer funding for “segregated” employment services.
The collapse of the ACTIV service was discussed during the wage case, especially as Our Voice had members using that service
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The new wage concept was finally embedded in the system as of 1 July, 2023. It will work its way incrementally through for the next 5 years. Like all new systems it will need tweaking here and there – just as the BSWAT should have been “tweaked” back in 2005.
Following the collapse of ACTIV – now run by Workpower – with great benefits to the employees and the community, the disability sector has been rocked by more and more collapses as quality providers are forced to leave the sector – due to financial unsustainability.
The one which now affects us most is the collapse of Bedford in South Australia. That’s 1400 employees, 800 staff at about 21 sites. Again, the Disability Peaks are absent and silent – as we have come to expect. Even we have not been able to provide the same level of support we provided in Western Australia.
With no resouces and the intervention of both levels of Government the “business”is up for sale so employees feel like a product available to the highest bidder. Families remain concerned as the Federal Minister seeks a “buyer”
The Disabiity industry is in crisis. Inclusive education is in crisis. We all aspire to the vision of a fully inclusive society – but inclusion is a life-style, not a geographical location. We have sought to create pathways and work collaboratively with the Peaks – a position we have been denied because we do not have a disability and our “lived experience” has been devalued by them, and the Federal Government. We do not need RADICAL hands controlling the wheel in this Inclusion Bus . We want “steady-as-she-goes”. We want to stop and pick up those who have missed the bus – or have been deliberateky left standing at the bus stop because they are not welcome or have been deliberately left behind OUR VOICE now needs to become YOUR Voice. Please visit our web-site https://www.ourvoiceaustralia.asn.au become a member, make a donation. Lend us your strength , Be THEIR voice. Thank you - Sincerely
Mary Walsh OAM,CPA, AIFS, JP(Qual)
Former Regional Co-ordinator Our Voice Australia 8 November, 2025
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