Written by erin schubert
Our Developing Field of
Disability Law
Our mission
Australian Disability Law is fascinating, complex, and ever evolving. Having originated in an era that conceived disability as a social taboo, much progress and legal reform has improved the provision of disability services in Australia and worked to uphold the human rights of people with a disability. The efficacy of this field is dependent on the passionate minds that seek to stand with and advocate for those vulnerable within our communities. It is paramount we continue to push for productive change in the face of challenges arising in this important sector.
‘Our Developing Field of Disability Law’, written and researched by Monash University’s EncycLAWpedia, aims to provide law students interested in non-traditional legal pathways with an insight into the developing field of disability law and ponder avenues for its future development.
““How our society understands and responds to the diversity of the human condition, and how a human rights approach can address the inherent and systemic disadvantage that people with disability experience in our community, is a global challenge.” ”
The History of Australian Disability Law
Summary
Disability was once understood through a medical lens, whereby people were treated as passive recipients of uniform care.
A shift to the ‘social model’ of disability in the 1970s and 80s understood disability as a social construct.
Legislative reform recognised people with disability as rights bearers.
The Commonwealth State Disability Agreement is established in 1991.
The National Disability Agreement replaces its predecessor in 2009, amidst growing sentiment for a national framework for the provision of disability support.
The Australian Government commits to considering the development of the National Disability Insurance Scheme following the Australia 2020 Summit in April 2009.
Historically, people with disability were not afforded the same rights. Disability was viewed through a medical lens, which hyper-fixated on individual deficit and viewed disability as something to be solved or curved.[1] In this context, people with disabilities were treated as passive recipients of welfare and care. This approach, now known as the ‘deficit model’ of disability support, left people segregated, socially isolated, vulnerable to abuse and with substantial economic and social disadvantage, creating a breeding ground for human rights violations.[2] These hardships were amplified by social stigma surrounding disability, which was itself fuelled by the systems that presented disability as something to be pitied, fixed, or eliminated.
The social model of disability was the result of a paradigm shift in the 1970s and 80s, during which disability rights activists began to conceptualise impairments as an inherent aspect of the human condition.[3] Disability in this context is socially constructed – the result of the interaction between people living with impairments and an environment filled with physical, attitudinal, and social barriers.[4] This new conception of disability recognised people with disability as rights bearers and was the driving force of legislative reform in Australia. Two major reforms during this time include the Disability Services Act 1986 (Cth), which introduced a new framework for funding and the provision of disability support services, with a focus on community-based support, and the Disability Discrimination Act 1992 (Cth), which created legal protection against discrimination and exclusion of people with disabilities.[5]
Following the implementation of the Disability Services Act 1986 (Cth), there existed ‘considerable overlap and confusion’ in the funding arrangements for disability services at the different levels of government.[6] This imposed barriers to meeting the objectives of the Act. The Commonwealth State Disability Agreement (CSDA) introduced in 1991 aimed at defining the roles and responsibilities of the Commonwealth, State and Territory governments in the provision of disability support.[7] The agreement arguably created the first opportunity for a joint and cooperative approach to policy, planning and funding for disability services in the country. There were nonetheless major shortcomings of the CSDA noted by the 1998 review,[8] some of which included:
Failing to establish practical provisions for resourcing jointly owned intergovernmental management capacity to develop the disability service system.
Doing little to provide for the issues of coordination that arose between the separate areas of responsibility imposed on each government.
Lack of strategic planning to meet growth in demand for services.
Doing little to target the needs of primary carers.
Inadequate attention to grievance and complaint procedures.
Given these limitations, many users did not see the CSDA as having led to improvements in the provision of disability support. In 2007, a Senate inquiry into the funding and operation of the CSDA recommended the development of a national strategy and the review of funding arrangements.[9] During the 2007 federal election campaign, the Labor Party committed to negotiate such a strategy, which would target ‘how to fund, finance and deliver disability services in the future’.[10] This is followed by the ratification of the UN Convention on the Rights of Persons with Disabilities in May of 2008, which sparked further push for legislative reform.[11] The National Disability Agreement (NDA) replaced the CSDA on the 1st January 2009, which gave the Federal government the responsibility of providing employment services for people with a disability and for funding for states and territories to assist with meeting the agreement’s objectives.[12] State and Territory governments were responsible for the coordination of specialist disability services including respite care, community access and advocacy.[13] Nonetheless, the Productivity Commission highlighted the need to facilitated cooperation, enhance accountability and further clarify roles and responsibilities in the provision of disability support services.[14] The sentiment for a more efficient national framework among advocates continued. Following the Australia 2020 Summit in April 2009, the Australian Government formally committed to considering the development of a National Disability Insurance Scheme, aimed at targeting identified gaps in the existing system.[15]
[1] "Social Model of Disability," People with Disability Australia, 2022, https://pwd.org.au/resources/models-of-disability/.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Luke Buckmaster and Shannon Clark, The National Disability Insurance Scheme: a chronology, Research Paper Series, 2018-19, Parliamentary Library, (Canberra, 2018), https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/Chronologies/NDIS#:~:text=The%20National%20Disability%20Agreement%20replaces,operation%20on%201%20January%202009.
[6] Standing Committee on Community Affairs, Funding and Operation of the Commonwealth State/Territory Disability Agreement, (Canberra, 2007), 5, https://www.aph.gov.au/parliamentary_business/committees/senate/community_affairs/completed_inquiries/2004-07/cstda/report/index.
[7] Ibid.
[8] Ibid, 8.
[9] Ibid.
[10] Buckmaster and Clark, The National Disability Insurance Scheme: a chronology.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Australian Government Productivity Commission, Review of the National Disability Agreement, (Canberra, 2019), https://www.pc.gov.au/inquiries/completed/disability-agreement#report.
[15] Buckmaster and Clark, The National Disability Insurance Scheme: a chronology.
Find Out More
· National Disability Insurance Scheme (NDIS)
o About: The NDIS is the scheme governing funding to eligible people with disability, to promote greater independence, access to new skills and an improved quality of life. The NDIS also connects anyone with disability to services in their community.
o Website: https://www.ndis.gov.au/
· NDIS Quality and Safeguards Commission
o About: The NDIS Quality and Safeguards Commission works with participants and providers, addressing complaints so as to improve the quality and safety of services and supports provided to people with a disability under the NDIS.
o Website: https://www.ndiscommission.gov.au/
· Disability Royal Commission
o About: The Disability Royal Commission independently investigate reports of violence against, and the neglect, abuse and exploitation of, people with disability, making recommendations to the government about what should change.
o Website: https://disability.royalcommission.gov.au/
Recent Publications, Commentary and Debate
National Disability Insurance Agency Reports
https://www.ndis.gov.au/about-us/publications/annual-report#annual-report-2021-22
News Media
· ‘What the NDIS needs to do to rebuild trust, in the words of the people who use it’, by Kate D’Cruz and Mark Brown
o About: Explores the administrative challenges associated with the NDIS and areas for potential reform.
o Link
· ‘Disability support services face financial woes’, by Maeve Bannister
o About: Shortages and underfunding that plague the disability support sector
o Link
· ‘The NDIS has transformed my life – and the last thing we need is media hysteria about its costs’, by Elly Desmarchelier
o About: Emphasises the positive achievements and impact of the NDIS, in response to recent hysteria regarding funding costs.
o Link
· ‘Limited support services in the remote NT are forcing people with disabilities to relocate’, by Housnia Shams
o About: Speaks to the challenges regarding access to NDIS support in regional and remote Australian communities.
o Link
Journal Articles and Books
· ‘Administering Inequality? The National Disability Insurance Scheme and Administrative Burdens on Individuals’, by Gemma Carey, Eleanor Malbon and James Blackwell (2021)
o About: Explores the administrative challenges associated with the NDIS and areas for potential reform.
o Link
· ‘Flexibility in individual funding schemes: How well did Australia’s National Disability Insurance Scheme support remote learning for students with disability during COVID-19? by Sophie Yates et al., (2020)
o About: Considers how COVID-19 impacted the quality of the NDIS as an individualised funding scheme designed to safeguard the choice and control of people with a disability.
o Link
· ‘Transition Experience of Families with Young Children in the Australian National Disability Insurance Scheme (NDIS)’, by Nirosha Boaden et al., (2020)
o About: Considers the experience of both clients supported under the NDIS and their families more broadly, through a range of surveys and interviews.
o Link
· ‘Choice, Control and Individual Funding: The Australian National Disability Insurance Scheme’, by Carmel Laragy and Karen Fisher (2020)
o About: Reviews the extent to which the NDIS gives people choice and control over their disability support funding, contemplating the implications of potential cuts to government funding.
o Link
· ‘The National Disability Insurance Scheme: Implementation Challenges in the NDIS’, by Gemma Carey and Eleanor Malbon (2021)
o About: Explores the implementation challenges of the NDIS through the lens of historical institutionalism.
o Link
Get Involved
Specialist Community Legal Centres
· Association of Employees with a Disability Legal Centre
o About: The AEDCL aims to actively promote the participation and inclusion of community members with a disability and improve community attitudes toward disability. With a specialisation in education and employment-related legal matters, AEDCL gives priority to cases such as jobs in jeopardy, bullying or harassment, wages and working conditions and unlawful termination of employment.
o Get Involved: Contact for volunteering and internship opportunities.
o Website: https://www.aed.org.au/
· Disability Discrimination Legal Service
o About: The DDLS is a state-wide community legal centre with a focus on disability discrimination legal matters. It provides free legal services including casework assistance, policy and law reform and community legal education. The DDLS aims to eliminate disability discrimination by raising awareness and promoting justice.
o Get Involved: Complete a volunteer application form online.
o Website: http://ddlsaustralia.org/
· Villamanta Disability Rights Legal Service
o About: Villamanta is a Community Legal Centre that specialises in disability-related legal matters, particularly for people with an intellectual disability, autism and acquired brain injury. They aim to ensure that people with a disability are acknowledged and are aware of their legal rights.
o Get Involved: See website for volunteer opportunities as made available.
o Website: https://villamanta.org.au/
Disability Rights Advocacy
· Melbourne East Disability Advocacy
o About: Melbourne East Disability Advocacy (MEDA) is committed to supporting and defending the rights of people with intellectual disabilities. Volunteer ‘advocates’ are matched to a person with an intellectual disability, who is at risk of social exclusion, to empower them to participate in decisions affecting their lives.
o Get Involved: To apply, contact MEDA with your expression of interest.
o Website: https://meda.org.au/
· Office of the Public Advocate
o About: The Office of the Public Advocate (OPA) works to protect and promote the interests, rights and dignity of people with a disability through advocacy, guardianship, advice, education, information, research and support.
o Get Involved: See http://www.publicadvocate.vic.gov.au/about-us/volunteer-vacancies for current vacancies.
o Website: https://www.publicadvocate.vic.gov.au/
· Youth Disability Advocacy Service
o About: The Youth Disability Advocacy Service (YDAS) is an advocacy organisation that works with young people aged 12 to 25 with a disability, to raise awareness and advocate for their rights. This included advocating for clients experiencing violence, abuse, neglect, breaches of their human rights or a denial of their decision-making capacity.
o Get Involved: If you are interested in being involved, email your resume and a brief cover letter to bfailla@ydas.org.au.
o Website: https://www.yacvic.org.au/ydas/
Sources
Australian Government Productivity Commission. Review of the National Disability Agreement. Canberra, 2019. https://www.pc.gov.au/inquiries/completed/disability-agreement#report.
Buckmaster, Luke, and Shannon Clark. The National Disability Insurance Scheme: a chronology, Research Paper Series, 2018-19. Canberra, 2018. https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/Chronologies/NDIS#:~:text=The%20National%20Disability%20Agreement%20replaces,operation%20on%201%20January%202009.
National Disability Insurance Scheme. “NDIS Quarterly Report: NDIS now supporting more than half a million Australians.” 2022. https://www.ndis.gov.au/news/7405-ndis-quarterly-report-ndis-now-supporting-more-half-million-australians#:~:text=With%20the%20scheme%20fully%20funded,a%20robust%20and%20viable%20NDIS.
National Disability Insurance Scheme. “What is the NDIS?” ndis.gov.au. 2022. https://www.ndis.gov.au/understanding/what-ndis.
People with Disability Australia. "Social Model of Disability." pwd.org.au. 2022. https://pwd.org.au/resources/models-of-disability/.
Standing Committee on Community Affairs. Funding and Operation of the Commonwealth State/Territory Disability Agreement. Canberra, 2007. https://www.aph.gov.au/parliamentary_business/committees/senate/community_affairs/completed_inquiries/2004-07/cstda/report/index.
Standing Committee on the National Disability Insurance Scheme. Progress Report on the Implementation and Administration of the National Disability Insurance Scheme. Canberra, 2014. https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_Disability_Insurance_Scheme/JNDIS-44th/First_progress_report.