Other issues

Employment

11.68 There are many concerns about the employment of people with disability in Australia, including those arising from lower levels of labour force participation and higher unemployment as compared to others;^[79] and the lowest employment participation rate for people with disability among OECD countries.^[80]

11.69 In addition, in response to the Issues Paper, stakeholders raised concerns about:

• the relationship between employment and social security systems;

• the operation of the Job Services Australia and Disability Employment Services system, including the conduct of employment services assessments;

• the operation of Australian Disability Enterprises;

• the operation of the supported wage system and business service wage assessment tool (and proposed changes); and

• the declining rate of employment of people with disability in the Commonwealth public service.^[81]

11.70 While these are important issues in the lives of persons with disability, the issues do not relate directly to concepts of legal capacity or decision-making ability, and the ALRC does not intend to make proposals in these areas.

Anti-discrimination

11.71 The nature and operation of Commonwealth anti-discrimination legislation raises a range of significant issues for people with disability. These issues relate especially to factors which may limit the ability of people with disability to access the system, including:

• the individualised nature of the complaint system;

• issues of standing;

• failure to cover intersectional discrimination;

• costs associated with proceeding past conciliation;

• reliance on, and the operation of, exceptions;

• coverage;

• positive duties;

• remedies and enforcement; and

• the role, powers and resourcing of the Australian Human Rights Commission.^[82]

11.72 These are systemic concerns about anti-discrimination law and practice and, in the light of this, and the significant work that has been undertaken in this area in recent years,^[83] the ALRC does not intend to make proposals in this area.

Insurance

11.73 In the Issues Paper, the ALRC asked what changes, if any should be made to the insurance exemption under the Disability Discrimination Act 1992 (Cth) (DDA), and for submissions on other issues relating to insurance. The key concerns expressed by stakeholders with respect to people with disability and insurance relate to:

• the availability of, information about, and the cost of insurance;

• the operation of policy exclusions, including for example in relation to pre-existing conditions and mental illness;

• the relevance, transparency and accessibility of the actuarial and statistical data on which disability-based insurance underwriting and pricing occurs; and

• reliance on the insurance exemption under the DDA.^[84]

11.74 Conversely, some stakeholders submitted that ‘laws and legal frameworks concerning insurance do not reduce the equal recognition of people with disability’ and that the operation of the underwriting process or the operation of the exemption under the DDA are appropriate.^[85]

11.75 Again, some of the issues highlighted by stakeholders do not relate directly to concepts of legal capacity or decision-making capability, and the ALRC does not intend to make proposals in these areas.

11.76 There have been a number of recent inquires which have dealt with these matters. For example, in many respects the concerns mirror those expressed in the ALRC’s Age Barriers to Work Inquiry. The conclusions reached in the report Access All Ages—Older Workers and Commonwealth Laws^[86] may also be applicable in the context of disability, including in relation to:

• the need for clear and simple information about available insurance products;

• the desirability of an agreement between the Australian Government and insurers requiring the publication of data upon which insurance offerings based on age rely;

• review of insurance exceptions under Commonwealth, state and territory anti-discrimination legislation as they apply to age as well as the development of guidance material about the application of any insurance exception under Commonwealth anti-discrimination legislation; and

• amendment of the General Insurance Code of Practice and the Financial Services Council Code of Ethics and Code of Conduct to include diversity statements or objects clauses that encourage consideration of the needs and circumstances of a diverse range of consumers, including mature age persons.^[87]

Parenthood and family law

11.77 The Terms of Reference identify parenthood and family law as an area for consideration in this Inquiry. Some of the issues which arise are referred to in other parts of the Discussion Paper. For example, issues concerning the appointment of case and litigation representatives and protecting vulnerable witnesses often arise in family law proceedings and are discussed in Chapter 7. Similarly, issues relating to sterilisation are discussed in Chapter 10.

11.78 Another issue raised by stakeholders was concern about the removal of children from parents with disability, particularly through the operation of the child protection system in states and territories.^[88] However, as outlined in Chapter 1, the focus of the ALRC’s work is on Commonwealth laws and legal frameworks, and examination of the operation of state and territory child protection systems extends beyond the Terms of Reference for this Inquiry.

11.79 Some stakeholders also raised issues relating to the effect that a parent having disability may have on parenting proceedings in the Family Court.^[89] However, the Hon Chief Justice Diana Bryant AO expressed the view that:

insofar as it is being suggested that the Act discriminates against parents with an intellectual disability, or that the presence of an intellectual disability is of itself a disqualifying factor in an application in which a parent is seeking to spend substantial time with their child, I believe those views are misconceived.^[90]

11.80 In any event, these concerns focus on the application by judges of the primary and secondary considerations in parenting matters under ss 60CC(2) and 60CC(3) of the Family Law Act 1975 (Cth) and are outside the scope of this Inquiry.

Holding public office

11.81 People with disability are significantly under-represented in public office.^[91] The main barrier to holding public office for persons with disability may be the negative assumptions about their ability to perform the functions in a role of trust. The Law Council of Australia acknowledged that this social disadvantage, rather than any legal restriction, affects the capacity of people to hold public office, as well as to engage in a profession, vocation or other activities.^[92]

11.82 The qualifications of members of the House of Representatives and Senators are set out in the Australian Constitution.^[93] They include eligibility as an elector under the Commonwealth Electoral Act 1918 (Cth).^[94] As discussed in Chapter 9, the ALRC proposes amendment of the ‘unsound mind’ provision contained in the Commonwealth Electoral Act.^[95]

11.83 Under the Australian Constitution, a Commonwealth judicial officer may be removed on an address from both Houses of the Parliament on the ground of ‘proved misbehaviour or incapacity’.^[96] A statutory process for assisting the Parliament to consider removal has been established by the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth). Under this Act, the Parliament may establish a commission to investigate and report on an allegation of misbehaviour or incapacity, so that the Parliament is well-informed about the decision at hand.

11.84 The Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth) modified various related laws such as the Family Law Act 1975 (Cth) and the Federal Court of Australia Act 1976 (Cth) to provide a statutory basis for the heads of jurisdiction^[97] to deal with complaints about judicial officers, including establishing a conduct committee.

11.85 The ALRC does not propose any change to these laws because they appear to provide for an impartial and considered approach to the assessment of decision-making ability. These 2012 laws have also not yet been tested. In time, the ALRC’s National Decision-Making Principles may inform the decisions of Parliament and the heads of jurisdictions of Commonwealth courts.