Your rights as a person with disability

Key points:

• Everyone has the right to live happy, meaningful and valuable lives, including people with disability

• It’s important to know your human rights and how you are protected in difficult situations

• There are a number of different safeguards, including the Disability Discrimination Act, to help protect people with disability

Whether it be discrimination, poor access to services, or issues with living life comfortably, all people with disability should know their human rights and how they are able to protect themselves during difficult situations.

There are a number of safeguards in place to protect people with disability, including Government legislation, United Nations mandates and more.

Your rights and the NDIS

Just as able-bodied people have, you have the right to live your life in the way that you wish without interference from others. However, sometimes your disability, family and friends, or service providers can get in the way of that.

You have the right to choose where you live, how you live, and how you spend your time to bring yourself enjoyment. This includes the ways you manage your disability and the services you wish to provide.

The National Disability Insurance Scheme (NDIS) was created to provide people with disability funding for services that benefit the way they want to live.

And providers, staff and the NDIS itself are required to provide you care that upholds your right to dignity, respect, and a life free of abuse and exploitation.

The NDIS also keeps in line with Australia’s commitment to the United Nations Convention on the Rights of Persons with Disabilities.

United Nations Convention

The United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) is an international human rights instrument that reaffirms that all people with disability, no matter the type of disability, can enjoy the same rights and freedoms as people without disability.

As a human rights treaty, it applies to all countries and people. Additionally, a contravention of the rights of people with disability results in UN sanctions.

Australia signed the Convention in 2008 and most of the discrimination issues of people with disability around the international law are dealt with by the Australian Human Rights Commission.

The Australian Human Rights Commission recognises that some people with disability do not have their disability services or support delivered appropriately in Australia in areas like personal assistance, support for family carers, support to live independently, access to assistive technology, and more.

A lot of Australia’s current disability safeguards are based on this UN Convention.

National Standards for Disability Services

The National Standards for Disability Services (NSDS), also referred to as National Standards, help drive a consistent approach to quality services for people with disability. The standards focus on the rights and outcomes of disability services for people with disability. The revised version of the NSDS was implemented in 2014.

There are six National Standards that disability services providers are held to:

1. Rights – The disability service promotes individual rights to freedom of expression, self-determination and decision-making, and actively prevents abuse, harm, neglect or violence.

2. Participation and inclusion – The disability service needs to work with individuals and their families, friends and carers to promote opportunities for meaningful participation and active community and social inclusion.

3. Individual outcomes – Services and supports are to be assessed, planned, delivered and reviewed to build on individual strengths and enable individuals to reach their goals.

4. Feedback and complaints – Regular feedback is sought and used to inform individual and organisation-wide service reviews and improvement.

5. Service access – The disability service manages access, commencing and leaving a service in a transparent, fair, equal and responsive way.

6. Service management – The disability service has effective and accountable service management and leadership to maximise outcomes for individuals.

The aim of the standards is to provide a person centred approach to receiving disability services with included principles related to human rights and quality management.

National Disability Strategy

The Federal Government implemented the National Disability Strategy (NDS) 2010-2020 as a national plan spanning ten years consisting of ways to improve the lives of Australians with disability. It was updated and renamed Australia’s Disability Strategy 2021-2031 on 3 December, 2021.

The strategy covers seven areas;

• Employment and financial security
• Inclusive homes and communities
• Safety, rights and justice
• Personal and community support
• Education and learning
• Health and wellbeing
• Community Attitudes

Over the ten year strategy, people with disability are engaged to help with development, implementation and monitoring of progress of the national plan.

The Government wanted the strategy in place as a way to make clear targets, implement shared national vision for people with disability, and create future public policy directions.

Disability Discrimination Act

The Disability Discrimination Act 1992 (DDA) is one of Australia’s main pieces of legislation protecting people with disability.

The Australian Human Rights Commission says this Act makes it “unlawful to discriminate against a person, in many areas of public life, including: employment, education, getting or using services, renting or buying a house or unit, and accessing public places, because of their disability.”

This Act covers all people who have temporary or permanent disabilities, such as physical, intellectual, sensory, neurological, learning and psychosocial disabilities, diseases or illnesses, physical disfigurement, medical conditions, and work-related injuries.

People who have assistance, interpreters or readers, or trained animals, like assistance dogs, or utilise aids for their disability are covered in this Act.

The DDA also covers people who have a close family member or are friends of a person with a disability. No person can discriminate against you for associating with a person with disability.

Workplace discrimination

The Fair Work Act 2008 also protects people with disability from discrimination in employment.

This legislation is broader, covering all people who work, however, it is clear that you cannot discriminate against someone at all for any physical or mental disability.

There are many additional precautions in the Disability Discrimination Act around employment and making sure you cannot be discriminated against at work or in the recruitment stages.

While you are not allowed to be treated differently in employment or when you are looking for employment, there can be exemptions.

For instance, if your disability stops you from performing a main requirement of a job, the employer would be allowed to not hire you.

That being said, the employer still must make considerations around whether they can make reasonable adjustments so you can undertake a job.

State and Territory laws

Each State and Territory in Australia has its own Discrimination Act with accompanying Commissions that deal with complaints and discrimination. These Discrimination Acts also cover people with disability, but the main aim of the Acts is to stop discrimination towards a person based on any of their characteristics.

It can be a good idea to know what your rights are depending on the State and Territory you live in, however, the Disability Discrimination Act generally covers most things.

Your human rights

So where do you go if someone infringes your human rights?

Before making a complaint, the Australian Centre for Disability Law recommends getting help from a disability advocate or seeking legal advice.

You should do this before making a complaint. If the issue is not fixed this way, your next step would be to contact the Australian Human Rights Commission.

They will investigate your complaint and whether it falls under the Disability Discrimination Act.

This service is completely free and you do not need a lawyer or legal assistance to make a complaint to the Commission.

A complaint to the Commission needs to be provided in writing and can be sent through the Australian Human Rights Commission website.

You need to be aware that the Commission is not a court system. They will not be able to decide whether or not the complaint is discrimination. They aim to mediate, and provide steps to conciliation and agreed remuneration.

If your complaint is not resolved, you are able to escalate your complaint to the Federal Circuit Court or Federal Court of Australia. It is highly recommended to have a lawyer or advocate on board if you decide to take the discrimination complaint to court.

The Commission can provide you a referral to free legal advice and advocacy services to help when taking a complaint further.

There are also State and Territory based human rights commissions that can help:

• Australian Capital Territory – ACT Human Rights Commission

• New South Wales – Anti-Discrimination New South Wales

• Northern Territory – Northern Territory Anti-Discrimination Commission

• Queensland – Queensland Human Rights Commission

• South Australia – South Australia Equal Opportunity Commission

• Tasmania – Equal Opportunity Tasmania

• Victoria – Victorian Equal Opportunity and Human Rights Commission

• Western Australia – Western Australia Equal Opportunity Commission

How do you think the rights of people with disability can be better upheld? Tell us in the comments below.

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