Wallace, Craig --- "Disability reform in Australia: Unfinished business" [2014] PrecedentAULA 63; (2014) 125 Precedent 40

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DISABILITY REFORM IN AUSTRALIA

UNFINISHED BUSINESS

By Craig Wallace

In August, Australia held the sixth annual Festival of Dangerous Ideas, a forum for discussing the dangerous and unpopular, which is becoming a controversial set piece in the intellectual calendar. While most would welcome ideas that challenge established thinking, a truly dangerous idea gaining a footing in the public mind is that disability reform is complete with the beginnings of a National Disability Insurance Scheme (NDIS).

Our investment in the NDIS is a landmark achievement. However, it is likely to mean little without deep cultural, structural, economic, legal and attitudinal change for people with disability in this country.

We are at the end of the beginning, not the beginning of the end.

A decade ago, the late Christopher Newell wrote Disability in Australia,^[1] which was a withering critique of the profile, presence and real measurable progress achieved for people with disability.

Disability was a dead-end ministerial parking lot with almost no public interest value, aside from the occasional human interest story.

The disability movement had become notoriously fragmented. The vituperation between disability groups was a source of amazement to onlookers in the social services sector – many of whom were themselves no strangers to divisive arguments.

More recently, hundreds of thousands of Australians mobilised in an extraordinary campaign to build support for the NDIS. MPs and senators, as well as parliamentarians from state and territory legislatures, lined up to get on board, generating an unprecedented level of media interest in disability issues.

The campaign for the NDIS has done much to move disability into the first rank of public issues covered by serious journalists who now find themselves scrutinising an extraordinary public investment. When fully implemented in 2019-20, the cost of the NDIS is projected to be $22.1 billion per year, with further growth after maturity expected to reach $25 billion by 2022-23.^[2]

Yet this newfound momentum and profile will mean little unless we turn our hand to some of the unfinished business underpinning the unmet need for specialist services that the NDIS seeks to bridge.

This includes: the need for jobs and economic security; the need to address widespread entrenched obstacles to access with a weakened disability discrimination framework; poor community attitudes; and a systemic experience of abuse, neglect and segregation that would arguably have resulted in a wave of community outrage and decisive action had they been experienced in the same way by any other group in the Australian community.

With the exception of indigenous Australians in remote communities, some Australians with disability are as disadvantaged as it is possible to be in a developed country.

Shut Out: The Experience of People with Disabilities and their Families in Australia, a report published in 2009, found that ’many people with disabilities find themselves shut out – shut out of buildings, homes, schools, businesses, sports and community groups. They find themselves shut out of our way of life’.^[3]

Depending on where they live, some people with disability are completely unable to physically access banks, doctors’ surgeries, shops, planes and the entire built infrastructure of whole towns in Australia. Some people are held against their will in institutions, drugged, sterilised or abused in private boarding houses. When people with disability are murdered it is sometimes portrayed as an unfortunate tragedy or an act of mercy, rather than a criminal action.^[4] Women with intellectual disability are subject to forced sterilisation or have their children snatched away.^[5] Around 37,000 people with disability don’t go outside their homes.^[6] We routinely accept practices like job advertisements in inaccessible formats which preclude people from applying. Newell called it a social apartheid, and he was right to do so.^[7] There is discrimination against people with disability as a class which in relative terms is arguably the equal of whites-only public houses or the bygone days when women working in the Public Service were forced to retire on marriage.

Australia has a National Disability Strategy endorsed by the Council of Australian Governments (COAG) which is intended to encompass these broader, complex and embedded issues. Yet the Strategy is underdone, with only a few funded measures which have largely expired, such as the ABC Ramp Up community.

In this article, I survey some of these key mainstream challenges and suggest some of the responses we might make as a community to match the level of policy ambition harnessed by the NDIS campaign and prevent relapse into the torpor and division of earlier times.

JOBS AND ECONOMIC SECURITY

As Paralympic gold medallist, Kurt Fearnley, laid it out in his Australia Day speech in 2013, 45 per cent of people with a disability live in or near poverty; more than double the OECD average of 22 per cent.^[8] We rank 21st out of 29 OECD countries in employment participation rates for those with a disability.^[9] We rank 27th out of 27 in terms of the correlation between disability and poverty.^[10]

At the height of the Great Depression, around one in three Australians were unemployed,^[11] with many more underemployed. In the US, the unemployment rate was about 25 per cent.^[12]

The 2009 Survey of Disability, Ageing and Carers (SDAC) by the Australian Bureau of Statistics (ABS) shows in raw terms that 45.7 per cent of people with disability aged 15-64 years living in households were not in the labour force. That's almost half.

You could say that, in Australia, the unemployment and poverty rates of people with disabilities are placing us in conditions similar to those experienced during the Great Depression.

Faced with a problem of such magnitude, the response in the US of a newly elected President Franklin Delano Roosevelt in responding to the economic crisis was to mandate continuous innovation until things began to change. In his own words, “It is common sense to take a method and try it. If it fails, admit it frankly and try another. But above all, try something.”^[13]

Here in Australia, however, we seem stuck with the same old solutions to a problem that is entrenched. We are trying nothing new and repeating the same old solutions. Former Minister Macklin initiated a package of Disability Support Pension (DSP) measures in 2011^[14] and Minister Andrews has done so in 2014^[15]. Yet neither has created jobs.

Expecting changes to the DSP to create extra jobs is like trying to fix a leaky tap by getting an electrician in to rewire the ceiling. It's the wrong solution to the wrong problem and it doesn't work, but we keep doing it anyway.

Income support changes, like the changes to assessments for the under 35 years age group in the 2014 Federal Budget,^[16] don't tackle some big questions: why are people not getting jobs? Why are people falling out of jobs? Why are people underemployed? Why do we get stuck at base level? We need to look beyond parachuting people into jobs and ask how we set people up to fail. It's time we cut to the chase and tried new ideas to get more people with disabilities into meaningful work.

We need a goal. In its 2011 report for the Australian Network for Disability, Deloitte Access Economics points to an increase of between 191,000 and 203,000 additional people in the labour market, should participation increase by 10 per cent.^[17] If we're serious, a national goal of 200,000 jobs for people with disabilities over the next decade is reasonable.

When the Commonwealth and the states and territories split disability policy in the 1990s, disability support services were pushed to the states and income support, while employment programs were delegated to the federal government. The NDIS is shredding this divide, so perhaps it's the right time to ask whether there is more that the states, territories and local government can do. These bodies have leverage, they procure from industries that provide many base level jobs; why not make employment of people with a disability a national priority through COAG?

Attitudes are also important and governments invest in awards, campaigns and quality work to build the business case for employment like the Opportunity booklet produced by the Australian Network on Disability.^[18] Yet we have surprisingly little hard evidence about what attitudes are and what might actually work to shift them. Governments should invest in an internationally benchmarked national survey on community attitudes towards people with disability to formulate an action plan for better employment opportunities.

To give things a kick start, let's have an employment target in the Australian Public Service (APS). In the US, employment programs support people with disabilities to serve as interns in the White House and on Capitol Hill.^[19] Why can't Australian Senators and Members of the House of Representatives utilise the skills of people with disabilities in the work of our Parliament, or in their electorate offices through paid parliamentary internships? What an effective way to 'walk the talk' and show every constituent, business and lobbyist that this time we are serious and demonstrate what employees with disabilities can do?

As the controversy around comments by Myer CEO Bernie Brooks showed in 2013, disability is now a retail customer force to be reckoned with, so why not put that to good use?^[20]

The suggestion in a paper by former Federal Workplace Relations Minister Bill Shorten to introduce mandatory annual reporting by medium to large private employers, including about senior positions, is another good way of maintaining momentum.^[21]

There are broader issues at work. The 2009 ABS SDAC found that people with disability participate less across all life domains; for example, from being part of a sporting team to attending a sporting event, or from doing volunteer work to visiting a library. A US survey conducted in 2009 shows that participating in one area of life, like sport or the arts, can be the tipping point for people to re-engage in employment.^[22]

Disability Employment Services could provide assistance to build friendship networks or facilitate involvement in recreation, sport or arts to strengthen community connection, personal capacity and independence. Why can't we see if this works?

As the NDIS turns disability support funding on its head, we might also ask whether the principles of personalised budgets, which are shaping the NDIS, could apply to Employment Services. If services don't get people jobs, we should be able to take service funding to another provider, including job agencies outside the government-funded employment network, or even 'unbundle' support money directly to an employer to provide job opportunities with in-house support.

Instead of the well-worn track of changing the DSP impairment tables, the government might look into using income support to help people to sustain a job as they build assets and financial capacity, by allowing people with disability to move into entry-level positions for the first time to retain their DSP for a period of at least six months. This would allow people who lack confidence about their ability to retain a job and who have a low savings base to experience the benefits of employment while remaining confident that they have a fallback if things don’t work out.

A lack of innovation and imagination has stifled our response to disability and employment, yet this is the one area where Australia must do better to deliver on the investment in the NDIS.

DISABILITY DISCRIMINATION

Australia’s Disability Discrimination Act 1992 (DDA) is in need of a thorough overhaul. It is not up to the task of creating the accessible infrastructure that Australia needs to cope with an ageing population or to deliver on the promise of the NDIS.

The DDA framework forces ordinary people with disability like me to expose ourselves to litigation in a one-sided adversarial contest with services we use every day.’

While discrimination on the grounds of disability is illegal in Australia, the body which is meant to enforce the Act, the Australian Human Rights Commission, has no power to enforce decisions or to initiate actions unless it is responding to a complaint. The onus is therefore on individual people with disability to absorb the time, costs and risks of losing an action which can only be enforced by the courts.

The designers of the DDA appear to believe that, on top of everything else, Australians with disabilities are prepared to be mired in endless litigation, lobbing lawsuits at employers, airlines, shops, restaurants, schools and civic buildings with whom we interact on a regular basis.

The DDA positions us as outsiders who need to barge our way in, not holders of inherent rights. Isolating people with disabilities in communities is the last thing we need in an Australia where natural supports – like shops, community services and transport – are often the only fragile links sustaining people in a broken service system.

In this context, taking on large, well-oiled corporates with armies of slick lawyers, media machines and bottomless pits of defence funds is profoundly unfair and unreasonable. Community attitudes towards people with disabilities are already poor, yet the DDA seems to expect us to take on the role of volunteer sheriffs while dodging flak from those unhappy with a litigious society.

The current process stacks the cards in favour of those who discriminate. There is a complaint, then a mediation process, which is like a war of attrition where the pressure is on the complainant to fold lest the case go to court.

For an organisation with deep pockets, being subject to the DDA is, to quote former British Labour politician, Denis Healey, like being savaged by a dead sheep.^[23] Defendants usually have a generous armoury of defences – notably that accommodations will result in unjustifiable hardship. This is a nebulous, moveable concept that was arguably even further weighted against complainants as a result of the Jetstar decision.^[24]

The DDA's mechanisms, like the Standards and the former Commonwealth Disability Strategy, are half-hearted. The Commonwealth Disability Strategy was meant to deliver action plans across Commonwealth agencies, yet never really stepped up. Proof can be seen in the decline of employment of people with disability in the Australian Public Service (APS.

The DDA Standards Process, created as an engine for change, has been slow and unambitious in delivering transport standards which exempt, of all things, school buses, and have timelines that extend to 2032. Incorporating Access Standards into the Building Code took over a decade. The Standards seem to be in a perpetual state of review, like the old disability services system prior to the NDIS, as if we know it's broken, but don't know what to do.

As Rick Randall pointed out in a piece in the ABC’s Ramp Up,^[25] the most powerful legal instrument of the DDA is the capacity to grant exemptions which protect organisations from disability discrimination complaints. In other words, the AHRC can effectively prohibit four million Australians from making a complaint against that organisation for the duration of that exemption. Exemptions typically last for years.

If a complaint under the DDA is not conciliated (as happened with 51 per cent of all disability complaints in 2010-2011), complainants have only one option available; to pursue the matter in the Federal Court, which usually awards substantial legal costs against the unsuccessful litigant.

We need a discrimination law backed by robust mechanisms with teeth like the Americans with Disabilities Act,^[26] with an implementation authority capable of enforcing regulations, standards and driving continuous industry improvement.

Mechanisms need to move from complaints-handling to compliance with quality.

Over time, we will need another shift from providing access due to compliance to responding to demand. Businesses need to see people with disabilities as consumers of importance and value, especially as a peaking wave of retiring baby boomers acquire disability.

Access and inclusion are good sense and a right. Yet somehow the DDA manages to achieve neither of these mindsets. It creates a limbo which doesn't lever change outright or have sufficient 'muscle' to allow people to accept access as a given and move beyond rules and compliance to good service.

Despite almost one in five Australians having a disability, we have achieved nothing like the foothold that family friendly spaces, environmentally safe products or the pink dollar have gained in the corporate imagination.

The 21st century will place strains on our infrastructure and capacity for access as the population ages and the NDIS provides people with freedom to participate. The DDA is not up to the job and we need to do better.

COMMUNITY ATTITUDES

Our urban landscape remains littered with barriers; workplaces remain inaccessible and hostile to anyone outside the ‘young and hungry’ mould; and business has yet to grasp the potential of customers with different needs, treating us as an obscure niche market.

Yet we have surprisingly little hard evidence about what attitudes actually are and what might work to shift them. What we do know is cause for alarm.

A decade ago the ACT Disability Advisory Council which I chaired initiated Australia's first-ever internationally benchmarked research on community attitudes towards disability in one small and relatively privileged jurisdiction – the Australian Capital Territory. It involved layers of questions designed to expose real underlying attitudes.

The results were a worry. Twenty per cent of people said, point-blank, that people with disabilities could not be as effective at work as people without disabilities (that is, any person under any circumstances, regardless of skills); negative attitudes were held by people with a direct personal connection to disability; many didn't know what a disability was and just about everyone held major misconceptions about intellectual disabilities. Notably, these results emerged from a survey group that included some people with managerial profiles and high levels of tertiary education: telling in a public service town.^[27]

SEGREGATION, ABUSE AND JUSTICE

Australians with disability continue to be shut away, segregated and disadvantaged in the justice system, disbelieved as victims of violence and assault and over-represented in miscarriages of justice.

At one end, people like Marlon Noble, who was held for more than a decade without charge because of his disability,^[28] experience rough justice and indefinite detention without conviction, yet authorities frequently do not investigate and prosecute violence and abuse against people with disability.

Over a year ago, Four Corners aired the shocking tale of abuse at St Ann’s Special School in South Australia, where authorities had decided not to proceed with a case claiming sexual abuse of a child with an intellectual disability. The prosecution formed the view that the child could not give reliable evidence. The accused was released. The parents were caught between rage and despair. The people with disabilities were still disbelieved, shattered and – in the worst cases – dead.

Australian law allows for non-therapeutic sterilisation of children with disability and sterilisation of adults with disability without consent. There is no national framework, which should include consistent legal protections, on medieval seclusion, chemical, mechanical or physical restraint of people with disability.

Watchdogs like the Victorian Public Advocate report that abuse is rising and is in some cases double what it was two years ago.^[29] Unless we act now, the next Royal Commission and apology will be about abuse and disability. Sadly, there are indications that what we know from the media exposes might only be the tip of a deep, ugly iceberg. We are overdue for a national inquiry into the abuse and neglect of people with disability.

According to North American studies, children with disability are two to three times at greater risk of being sexually abused than those without.^[30]

Closer to home, some of the signs of how deep abuse of people with disability goes are subtle, but they are there if you know where to look.

Take information on safety from the ABS, which shows that people with disabilities often feel unsafe and that people with profound or severe disability or with intellectual or psychosocial disabilities are less likely to report feeling safe at home alone at night (56 per cent and 61 per cent respectively), compared with 73 per cent of people with a physical disability and 88 per cent of people who do not have a disability.^[31]

We also know that abuse of young and old alike festers in places like boarding houses. A report by the NSW Ombudsman showed that vulnerable residents in boarding houses licensed by the state government have been physically and sexually assaulted by staff and other residents; have died in appalling circumstances; and have been denied basic rights, including contact with their families.^[32]

People with Disability Australia has called for a comprehensive inquiry into responses to abuse of people with disabilities at schools, boarding houses and other congregate facilities, examining in particular the presumption that people with disabilities cannot give reliable evidence.

Sadly, people with disabilities live in social crevices, not by choice, but because of our disabilities. It is time that the most vulnerable have the chance to tell their stories.

Last year, People with Disability Australia released a plan with six key objectives combining prevention, protection, prosecution and partnership:

1. Stop the funding of all institutions – these are museums of misery and havens for abusers as the Royal Commission is sadly showing every day. A key principle is that people should not have to live in a particular place just to receive disability supports;

2. Implement early prevention measures aimed at ending violence and abuse;

3. Establish an independent, statutory, national protection mechanism with enforceable powers;

4. Develop a national framework to clamp down on restrictive practices like chemical and physical restraint of people with disability;

5. Fund mainstream anti-violence services like women’s domestic violence shelters; and

6. End non-therapeutic sterilisation of children with disability and adults with disability without full and informed consent.

Australia is a long way from the end of our national project for disability in all these areas.

This is unfinished business: our task now is to describe the rest of the journey, and set measurable goals to realise the benefits of the NDIS as envisaged by the Productivity Commission.

Craig Wallace is the President of People with Disability Australia. You can follow Craig @CraigWtweets and find out more about PWDA at www.pwda.org.au.

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^[1] Gerard Goggin and Christopher Newell, Disability in Australia: Exposing a Social Apartheid, Sydney, University of New South Wales Press, 2005.

^[2] National Commission of Audit, ‘9.2 The National Disability Insurance Scheme’, Towards Responsible Government: The Report of the National Commission of Audit, Commonwealth of Australia, 2014: http://www.ncoa.gov.au/report/appendix-vol-1/9-2-national-disability-insurance-scheme.html.

^[3] National People with Disabilities and Carer Councils, Shut Out: The Experience of People with Disabilities and their Families in Australia, Commonwealth of Australia, 2009: https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policy-research/shut-out-the-experience-of-people-with-disabilities-and-their-families-in-australia.

^[4] Stella Young, ‘Disability and murder: victim blaming at its very worst’, ABC The Drum (16 September 2014), http://www.abc.net.au/news/2014-09-16/young-victim-blaming-at-its-very-worst/5745346.

^[5] Carolyn Frohmader, ‘Dehumanised’ - Submission to the Senate Inquiry into the involuntary or coerced sterilisation of people with disabilities in Australia, Women With Disabilities Australia, 2013.

^[6] Australian Bureau of Statistics, ‘Getting Out of the House’, 4439.0 – Social Participation of People with a Disability, 2011: http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4439.0main+features52011.

^[7] Goggin and Newell, above note 1.

^[8] PricewaterhouseCoopers, Disability Expectations: Investing in a better life, a stronger Australia, 2011: http://www.pwc.com.au/industry/government/assets/disability-in-australia.pdf.

^[9] Ibid.

^[10] Cassandra Golie, Craig Wallace and Maree O’Halloran, ‘Jobs not Newstart the key to disability pension reform’, The Sydney Morning Herald (31 December 2013), http://www.smh.com.au/federal-politics/political-opinion/jobs-not-newstart-the-key-to-disability-pension-reform-20131231-3049f.html.

^[11] Annie Stevens, Skint! Making do in the Great Depression, Sydney Living Museums, 2013: http://sydneylivingmuseums.com.au/stories/skint-making-do-great-depression.

^[12] United States History, Unemployment Statistic during the Great Depression, 2014: http://www.u-s-history.com/pages/h1528.html.

^[13] Roosevelt Institute, Try Something, http://www.rooseveltinstitute.org/people/try-something.

^[14] Peter Whiteford, ‘Will the budget slow the growth of disability support pension numbers’, Inside Story (12 May 2011), http://insidestory.org.au/will-the-budget-slow-the-growth-of-disability-support-pension-numbers.

^[15] http://kevinandrews.dss.gov.au/transcripts/81.

^[16] http://www.humanservices.gov.au/corporate/publications-and-resources/budget/1415/measures/disability-and-carers/51-000737.

^[17] Deloitte Access Economics, The economic benefits of increasing employment for people with disability, Australian Network on Disability, 2011.

^[18] Australian Network on Disability, Opportunity, 2014: http://www.and.org.au/pages/opportunity-.html.

^[19] Mason Life, ‘New Congressional Intern Program for Disabled College Students’, George Mason University, 2010: http://masonlife.gmu.edu/news/stories/news-congressional-internships.

^[20] Brian Robins, ‘Myer predicts hit from rise to health levy’, The Sydney Morning Herald (2 May 2013), http://www.smh.com.au/business/myer-predicts-hit-from-rise-to-health-levy-20130501-2itaf.html.

^[21] Craig Wallace, ‘Fresh ideas on disability and jobs’, ABC Ramp Up (20 June 2013), http://www.abc.net.au/rampup/articles/2013/06/20/3785743.htm.

^[22] Disabled Sports USA, Survey finds Disabled Sports USA participants twice as likely to be employed as adults with disabilities, 2009: http://www.disabledsportsusa.org/survey-finds-disabled-sports-usa-participants-twice-as-likely-to-be-employed-as-adults-with-disabilities/.

^[23] In 1978, this was how former UK Labour Chancellor, Denis Healey, described being attacked by Liberal politician, Geoffrey Howe.

^[24] King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8.

^[25] Rick Randall, ‘Australia’s DDA: not the sharpest tool in the shed’, ABC Ramp Up (28 Feb 2011), http://www.abc.net.au/rampup/articles/2013/02/28/3700346.htm.

^[26] United States Department of Justice Civil Rights Division, Information and Technical Assistance on the Americans with Disabilities Act, 2014: http://www.ada.gov/.

^[27] ACT Disability Advisory Council, Snapshot of community attitudes on disability in the ACT, Doctors’ Health Advisory Service, 2004.

^[28] Michael Brull, ‘The sad story of Marlon Noble’, ABC Ramp Up (9 December 2011), http://www.abc.net.au/rampup/articles/2011/12/09/3387845.htm.

^[29] Julia Medew, ‘Rise in abuse of disabled, elderly and mentally ill’, The Age (18 September 2014), http://www.theage.com.au/victoria/rise-in-abuse-of-disabled-elderly-and-mentally-ill-20140918-10ioui.html.

^[30] SINTF Unimed, Is sexual abuse of children with disabilities disclosed? A retrospective analysis of child disability and the likelihood of sexual abuse among those attending Norwegian hospitals, US National Library of Medicine, National Institutes of Health, 2000: http://www.ncbi.nlm.nih.gov/pubmed/10983817.

^[31]Australian Bureau of Statistics, above note 6, ‘Feelings of Safety’: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4439.0Main%20Features72011?opendocument&tabname=Summary&prodno=4439.0&issue=2011&num=&view=.

^[32] People with Disability, NSW Ombudsman Report 2011, http://www.pwd.org.au/issues/nsw-ombudsman-report-2011.html.