Kerin, Anthony --- "The age of disability" [2014] PrecedentAULA 54; (2014) 125 Precedent 2

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THE AGE OF DISABILITY

By Anthony Kerin

Obtaining justice for people who are injured or disabled is central to our work, and the introduction of the National Disability Insurance Scheme (NDIS) has undoubtedly complicated the legal landscape in which we advise our clients.

This edition of Precedent brings readers up to date with important developments. The standard of the articles is most impressive and, to use the media vernacular, this is a ‘bumper edition’ for plaintiff lawyers.

Patrick Boylen, the ALA’s SA state president, provides a comprehensive overview of the recent CTP changes in SA, and the devastation of rights for people injured in motor vehicle accidents generally. He lays bare the machinations behind the purported ‘improvements’ claimed by the government, and outlines the lessons that other Australian jurisdictions can learn from the SA experience.

The NDIS heralds a new area of law. Aneita Browning describes the internal review processes of the National Disability Insurance Agency’s decisions. The NDIA’s stated aims of achieving flexibility and simplicity, while keeping costs to a minimum, are all commendable, so long as justice is not a casualty.

Janine McIlwraith’s article examines the first reported AAT decisions under the NDIS. One might conclude that a Federal Court view on the breadth of the legislation and its fundamental concepts is not that far away.

Turning to national minimum standards in workers’ compensation, Roshana May and Petrina Casey ask why would we not aim for an ideal or a best practice scheme? They remind us that the purpose of all these reforms is to assist injured workers within a viable scheme.

The ACT’s Geoff Wilson and Bill Redpath critique the Safety Rehabilitation and Compensation Act 1988 (SRC Act) and limit themselves to 10 things ‘they hate’ about the Act. They conclude that it is not yet a scheme that could be said to be the model for the whole of Australia. I query whether, in fact, there is one at all.

The ALA’s Legal and Policy Officer, Emily Mitchell, provides a comprehensive review of the National Injury Insurance Scheme (NIIS) to date and its likely future direction. Her article exposes the vast amount of work completed in the area over the last few years and questions whether the NIIS is a potential ‘Trojan horse’ that in fact threatens individual rights in the guise of disability reform.

People with disability should have greater access to justice. Natalie Wade’s article addresses the procedural complexities in finding witnesses with a communication disability competent and compellable to give evidence in civil trials. She highlights the need for updated judicial education in order to improve access to justice for people with significant communication disabilities.

Paul Cain argues against the use of the discriminatory Business Services Wage Assessment Tool, which has reduced the wages of people with intellectual disability since 2004, and was found to be unlawful by the Federal Court in Nojin v Commonwealth. His article describes the attempts by the federal government to evade paying back pay for workers subjected to this discriminatory assessment tool, and concludes that any social benefits of institutions such as the Australian Disability Enterprises are ‘no substitute for real wages’.

Craig Wallace, president of People with Disabilities Australia, assesses the track record of disability reform in Australia over the past decade. The abuse of people with disabilities, physically and sexually, has been highlighted in a number of inquiries and cases in recent years. His sobering article reminds us that decoupling disability and disadvantage in this country is still very much a work in progress.

Bill Madden provides us with another of his erudite articles; this time updating us on the interaction between obtaining damages and recovery issues under the NDIS. In this new legislative era, plaintiff lawyers will need to advise clients in the context of the NDIS, particularly in cases where future care costs are a concern.

This edition is a credit to all staff and to Renee Harris, in particular, whose tireless efforts continue to advance the flagship product of the organisation. The content of this edition is of the highest standard. I commend the authors for their time and effort and I trust you enjoy the read.

Anthony Kerin, formerly national president of the ALA, is now a partner at Grope Hamilton Lawyers. He can be contacted at [e-mail].