Recommendations 4.1 to 4.21 – Establish a Disability Rights Act

What has been achieved to date

On 30 May 2024, the Parliamentary Joint Committee on Human Rights (PJCHR) tabled its inquiry report regarding Australia’s Human Rights Framework. The PJCHR reviewed the scope and effectiveness of Australia’s Human Rights Framework and made 17 recommendations directed to improving human rights protection in Australia, including for the enactment of a federal Human Rights Act.

The Australian Government is considering the Disability Royal Commission’s recommendations in relation to the enactment of a Disability Rights Act, and the accompanying functions and complaints mechanism of a National Disability Commission, alongside the Parliamentary Joint Committee on Human Rights’ recommendations.

What the Disability Royal Commission said in the Final Report

4.1 – Establish a Disability Rights Act

The Australian Government should commit to the enactment of a Disability Rights Act and take the necessary steps to introduce the legislation into Parliament and support its enactment. The necessary steps should include consultation with people with disability, disability representative organisations and other key stakeholders.

4.2 – Objects of the Disability Rights Act

The objects of the Disability Rights Act should include giving effect to Australia’s obligations under, and the general principles set out in, the Convention on the Rights of Persons with Disabilities.

4.3 – Principles in the Disability Rights Act

The Disability Rights Act should include a set of guiding principles designed to promote and advance the rights of people with disability in Australia. The Disability Rights Act should require that a person or entity exercising functions under the Act have regard to the principles.

4.4 – Future review of the Disability Rights Act

a) The Australian Government should ensure that a review of the Disability Rights Act is undertaken in consultation with people with disability within five years of the commencement of the Act.

b) The review should include consideration of

• how the Act should be improved
• the effectiveness of compliance mechanisms
• the availability of appropriate remedies that meet the needs of people with disability
• whether and how duties in the Act should be extended or applied to additional persons or entities, including private sector providers under the National Disability Insurance Scheme (NDIS).

c) Commissioners Bennett, Galbally and McEwin alternatively recommend the final point above be considered by the Australian Government as a priority and that these additional duty-holders be included from the commencement of the Act.

4.5 – The right to non-discrimination and equality before the law

The Disability Rights Act should recognise all human beings are equal in worth and dignity and every person with disability:

a) has the right to enjoy their human rights without discrimination (on the ground of disability or on a combination of protected grounds where one of those grounds is disability)

b) is equal before the law, is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

4.6 – The right to equal recognition before the law

a) The Disability Rights Act should recognise that people with disability have the right to recognition as a person before the law. Accordingly, they have the same rights as other members of the community to make decisions that affect their lives to the full extent of their ability to do so.

b) The Disability Rights Act should recognise:

• the right of people with disability to access and use supports in making and participating in decisions that affect them, communicating their will and preferences, and developing their decision-making ability
• the right of people with disability to access and use advocacy services in making and participating in decisions, communicating their will and preferences, and developing their decision-making ability

c) The Disability Rights Act should define ‘supports’ broadly.

d) The Disability Rights Act should require supports for people with disability from First Nations communities and culturally and linguistically diverse backgrounds to be provided in a way that:

• recognises that cultural, language and other differences may create barriers to providing the supports
• addresses those barriers and the needs of those people with disability
• is informed by consultation with their communities.

e) The definition of ‘advocacy service’ in section 7 of the Disability Services Act 1986 (Cth) should be amended to include a reference to a service that seeks to support people with disability to exercise their rights and freedoms under domestic law, including under the Disability Rights Act. This would be in addition to the existing reference to rights and freedoms under the ‘Disabilities Convention’.

4.7 – The right to live free from exploitation, violence and abuse

The Disability Rights Act should recognise:

a) people with disability have the right to live free from all forms of exploitation, violence and abuse, including the right to freedom from gender-based violence and abuse

b) people with disability have the right to accessible information and education on how to avoid, recognise and report exploitation, violence and abuse

c) people with disability who are victims of any form of exploitation, violence or abuse have the right to

• access protection services that promote the health, welfare, dignity, and autonomy of such persons
• access protection services that are sensitive and responsive to the different needs and experiences of people with disability, due to one or more attributes such as sex; gender identity; sexual orientation; ethnicity; language; race;
• religion, faith, or spirituality; socio-economic status; age; neurodiversity; culture; residency status; geographic disadvantage; and experiences of trauma
• report allegations of exploitation, violence, and abuse, with protection from victimisation for making a report.

4.8 – The right to liberty and security of person

The Disability Rights Act should recognise every person with disability has the right to liberty and security of person. In particular, no person with disability may be arbitrarily arrested or detained. No person with disability may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.

4.9 – The right to equitable access to health services

The Disability Rights Act should recognise the right of people with disability to equitable access to health services. This right should include:

a) the right to the same range, quality and standard of free and affordable health care and programs as people without disability

b) the right to exercise choice about healthcare options and between available services

c) the right to access and receive quality health services appropriately adapted or specifically designed to meet the needs of the person with disability

d) the presumption of legal capacity and provision for supported decision-making

e) the right to adjustments required to access services and to receive treatment and care (to the extent that a duty-holder is required to provide adjustments in accordance with the Disability Discrimination Act 1992 (Cth))

f) the right to accessible information

g) the right of First Nations people with disability to receive health care that is culturally safe and recognises the importance of their personal connection to community and Country

h) the right to access health services that are safe, sensitive and responsive to the intersectional needs and experiences of the person with disability, noting that intersectional needs and experiences may be due to a variety of attributes, including sex; gender identity; sexual orientation; ethnicity; language; race; religion, faith or spirituality; socio-economic status; age; neurodiversity; culture; residency status; geographic disadvantage; and experiences of trauma

i) the right to voice opinions and to make complaints about health services.

4.10 – Public authority conduct

a) The Disability Rights Act should make it unlawful for a ‘public authority’ to:

• act in a way that is incompatible with a right in the Disability Rights Act
• fail to give proper consideration to a right where relevant to the decision being made.

b) ‘Public authority’ should be defined to include:

• a minister of the Australian Government when exercising a statutory power or authority
• a Commonwealth entity defined in the Public Governance, Performance and Accountability Act 2013 (Cth)
• an official of a Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013 (Cth)
• an individual who is employed by, or engaged in assisting, a Commonwealth entity or a staff member of a Commonwealth entity on behalf of the entity or the Commonwealth
• a contracted service provider for the Commonwealth when providing goods or services under a Commonwealth contract, as well as an officer or employee of the contracted service provider for the contract, and someone who provides goods and services for the purposes of the contract
• an individual who is appointed or engaged as an officer or employee of a federal court or tribunal when acting in an administrative capacity
• other entities prescribed by regulations as public authorities for the purposes of the Disability Rights Act.

c) The Disability Rights Act should provide for a mechanism through which a non-Commonwealth entity could ask the minister to declare that the entity is subject to the obligations of a public authority under the Act and for a register of such entities to be published.

4.11 – Consultation with people with disability

a) The Disability Rights Act should require Commonwealth entities (as defined in the Public Governance, Performance and Accountability Act 2013 (Cth)), in developing and evaluating policies, laws and programs and in planning new initiatives or making major changes to services that are provided to the public, or have a direct and significant impact on the public, to consult with:

• people with disability (including disability representative organisations), recognising the special importance of consulting and actively involving First Nations people with disability in issues that affect them
• children and young people with disability where appropriate, or representatives of children and young people (including, as relevant, disability representative organisations, the National Children’s Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner or equivalents in the states and territories)
• families, carers and supporters of people with disability (which could include their representative organisations) on issues that will or could affect families, carers and supporters in their caring role.

b) The Disability Rights Act should specify the nature of any consultation required and the consequences of a failure to consult.

c) The Disability Rights Act should provide that the consultation requirement does not give rise to a civil cause of action in any person or organisation.

d) The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) should be amended, or an accompanying legislative instrument be prepared, requiring statements of compatibility accompanying Bills and legislative instruments to provide information about relevant actions taken by Commonwealth entities to comply with the consultation requirement in the Disability Rights Act.

4.12 – Positive duty to promote disability equality and inclusion

a) The Disability Rights Act should include a requirement for a Commonwealth entity, in the exercise of its functions, to have due regard to the need to take necessary and proportionate action to advance the policy objectives of equality, inclusion and respect for the dignity of people with disability

b) The requirement in a) should include the Commonwealth entity having due regard to the need to:

• ensure equality of rights, opportunities, responsibilities and outcomes between people with disability and other members of the Australian community
• act consistently with its obligations under the Disability Discrimination Act 1992 (Cth), including the duties recommended in Chapter 4 to:
  • take reasonable and proportionate measures to eliminate all forms of discrimination on the grounds of disability
  • make adjustments for people with disability so they can enjoy their human rights without discrimination, unless it would cause an unjustifiable hardship
• address barriers that disadvantage people with disability, including barriers compounded by a person with disability’s combination of attributes and experiences
• promote accessibility and universal design, and appropriate remedial action to existing infrastructure
• address stigma, stereotyping, prejudice, violence, abuse, neglect and exploitation affecting people with disability
• foster good relations between people with disability and other members of the community.

4.13 – The duty to provide an interpreter

a) The Disability Rights Act should require Commonwealth entities to provide (arrange and fund) an appropriately trained and credentialed interpreter when required by a person with disability who is accessing or using its services or engaging with its statutory functions. Interpreters may be required in Auslan, First Nations sign languages or spoken languages other than English.

b) The Disability Rights Act should provide that it is not a breach of the above duty if the relevant Commonwealth entity can demonstrate that:

• there was no appropriately qualified interpreter available after reasonable enquiry
• the conversation or activity that the interpreter was required for could not reasonably have been undertaken at an alternative time when an interpreter would have been available.

4.14 – The duty to provide accessible information

The Disability Rights Act should provide that a Commonwealth entity must ensure that its communications are provided in at least two formats accessible to people with disability when:

• publishing public information
• consulting or engaging with persons with disability.

4.15 – Duties supporting compliance with the Disability Rights Act

To support compliance with the Disability Rights Act, the Act should require Commonwealth entities to:

a) report annually on action they have taken to implement their duties under the Disability Rights Act

b) conduct a disability impact assessment when developing or reviewing any policy or law administered, or program or service provided, by the entity that has a direct and significant impact on the public

c) undertake a self-assessment audit for disability inclusion at least every four years

d) publish their specific and measurable objectives to further the aims of the positive duty to promote disability equality and inclusion at least every four years.

4.16 – Interpretation of the Disability Rights Act consistently with international human rights

The Disability Rights Act should require interpretation of the Act to be compatible, as far as possible, with the international human rights treaties to which Australia is a party, including the Convention on the Rights of Persons with Disabilities, and with the United Nations Declaration on the Rights of Indigenous Peoples.

4.17 – Limitations on rights

a) The Disability Rights Act should require that rights in the Act be subject only to such limitations that are reasonable and justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors (to be specified in the legislation).

b) The Disability Rights Act should make clear that the right to recognition before the law (see Recommendation 4.6), as an absolute right under international law, is not subject to any limitations.

c) This issue should be subject to consultation prior to enactment of the Disability Rights Act.

4.18 – Functions of the National Disability Commission to support compliance with the Disability Rights Act

To support compliance with the Disability Rights Act, the Act should provide the National Disability Commission (recommended in Volume 5, Governing for inclusion) with functions and powers to:

a) promote understanding and acceptance of the rights of people with disability under the Act

b) undertake research in relation to the rights and duties under the Act

c) issue guidelines on any matter relating to the Act

d) review a person or entity’s compliance with the Act (or an aspect of the Act) at that person or entity’s request

e) receive complaints or anonymous or confidential reports alleging a contravention of the Act

f) inquire into and report on any act or practice that may be inconsistent with or contrary to the Act

g) require the giving of information and the production of documents during the conduct of a formal inquiry

h) require the examination of witnesses under oath or affirmation during the conduct of a formal inquiry

i) enter into an enforceable undertaking with a person or entity in relation to compliance with the Act (engaging Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth))

j) issue a compliance notice where the National Disability Commission reasonably believes that the relevant person or entity, without reasonable excuse, has failed to comply with the Act

k) apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for enforcement of a compliance notice

l) apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for an injunction (engaging Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth)) to prevent or stop a contravention of the Act

m) intervene in any proceedings before a court or tribunal that relate to the application or interpretation of the Act.

4.19 – Co-design a new complaints mechanism for people with disability

a) The National Disability Commission should co-design its complaints mechanism under the Disability Rights Act with people with disability, taking into account:

• the national guideline for accessible and responsive complaint handling and investigative practice to be co-designed with people with disability (recommended in Volume 11, Independent oversight and complaint mechanisms)
• processes to support referrals to police and other regulatory or oversight bodies (noting that Volume 11 recommends a ‘one-stop shop’ independent complaint reporting, referral and support mechanism in each state and territory)
• key features for effective remedies outlined in this Final report.

b) Acts, omissions or practices that are unlawful under the Disability Rights Act (with the exception of duties supporting compliance with the Act, such as reporting obligations) should be added to the definition of ‘unlawful discrimination’ under section 3(1) of the Australian Human Rights Commission Act 1986 (Cth). This would enable the Australian Human Rights Commission to offer dispute resolution for relevant Disability Rights Act matters alongside related human rights and discrimination complaints involving a public authority.

4.20 – Enabling remedies through the courts

The Disability Rights Act should establish a standalone cause of action under which:

a) the following persons can bring a claim to the Federal Court of Australia or the Federal Circuit and Family Court of Australia that a relevant duty-holder has acted in contravention of the Disability Rights Act (other than compliance with the consultation requirement, notices of the National Disability Commission, duties supporting compliance with the Act such as reporting and self-audit obligations, and the positive duty to promote disability equality and inclusion):

• an aggrieved person on their own behalf; an aggrieved person on behalf of themselves and others who are also aggrieved
• two or more aggrieved persons on behalf of themselves or others who are also aggrieved (a group claim)
• a person or disability representative organisation on behalf of one or more aggrieved persons (a representative claim)

b) where a claim is brought before a court under a) and the court finds that a person or entity has acted incompatibly with the Disability Rights Act, it can make any order it considers just and appropriate, including damages

c) provisions in relation to costs are aligned with Commonwealth discrimination law, as amended following the 2022–23 review by the Australian Government Attorney-General’s Department.

4.21 – Strengthening awareness and understanding of disability rights

a) The Disability Rights Act should provide the National Disability Commission with statutory functions to:

• promote understanding and acceptance, and the public discussion, of the rights of people with disability under the Act
• develop and deliver guidance materials and educational and training programs in relation to the rights and duties under the Act. Guidance should include how the intersectional experiences and identities of people with disability can affect the ways in which rights are limited or promoted in practice.

b) The National Disability Commission should co-design and co-deliver training programs and resources with people with disability, and with the Australian Human Rights Commission where relevant, to provide a complete picture of human rights protections for people with disability under the Disability Rights Act and the Disability Discrimination Act 1992 (Cth).

c) The Australian Government should provide the National Disability Commission and the Australian Human Rights Commission with dedicated resources to undertake these roles.

Australian Government Response July 2024

The Australian Government is committed to upholding the rights of people with disability.

On 30 May 2024, the Parliamentary Joint Committee on Human Rights (PJCHR) tabled its inquiry report regarding Australia’s Human Rights Framework. The PJCHR made 17 recommendations, including that the Government re-establish and significantly improve Australia’s Human Rights Framework. The PJCHR recommended the re-established and improved human rights framework include, among other things, the establishment of a federal Human Rights Act and enhancements to the role of the Australian Human Rights Commission.

The Australian Government will further consider the Disability Royal Commission’s recommendations in relation to the enactment of a Disability Rights Act, and the accompanying functions and complaints mechanism of a National Disability Commission, alongside the PJCHR’s recommendations. This will ensure a holistic approach is taken to ensuring the rights and freedoms of all Australians are respected and protected.

The Government has also continued to progress a range of reforms and measures that will better protect and advance the human rights of people with disability. Key measures include: 

Enacting a new Disability Services and Inclusion Act

On 1 January 2024, the Disability Services and Inclusion Act 2023 (the DSI Act) commenced. The DSI Act replaces the Disability Services Act 1986 and strengthens quality and safeguard arrangements for people with disability outside the National Disability Insurance Scheme (NDIS). This includes by:

• providing a more agile way to fund disability services and supports
• introducing quality and safeguarding requirements for supports provided outside the NDIS through a mandatory code of conduct, complaints and incident reporting requirements, and certification where required
• in conjunction with other laws, giving effect to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.
• introducing a modern, inclusive legislative framework to enable responses to the Royal Commission, and
• supporting people with disability to exercise choice and control in matters that affect their lives, including by participating in the development and review of services and supports.

The DSI Act was developed through consultation with people with disability and seeks to embed human rights principles. Key objects of the DSI Act include, among other things, advancing the inclusion and social and economic participation of people with disability; promoting respect for the inherent dignity, difference and individual autonomy of people with disability; and raising community understanding of barriers to the inclusion and participation of people with disability.

Costs in discrimination proceedings

In November 2023, the Government introduced the Australian Human Rights Commission (Costs Protection) Bill 2023 to Parliament, which would introduce a new costs model for federal discrimination proceedings to reduce the risk of costs orders being made against applicants, including people with disability

Developing a new International Disability Equity and Rights Strategy

The Australian Government is developing a new International Disability Equity and Rights Strategy to ensure Australia remains a strong and consistent global leader in advancing equity and human rights for people with disability.

Supporting participation at the Conference of States Parties (COSP) to the United Nations Convention on the Rights of Persons with Disabilities

The Conference of State Parties (COSP) is the most significant and diverse meeting of people with disability in the world. In 2024, the Government supported 9 Australians representing the disability community to attend the 17th COSP at the United Nations headquarters in New York.

More recommendations

View progress on other recommendations made by the Royal Commission.