Review of equal recognition before the law and legal capacity for people with disability submission

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1 Review of equal recognition before the law and legal capacity for people with disability submission

2 Spinal Cord Injuries Australia Background: Spinal Cord Injuries Australia (SCIA) was formed in 1967 by a group of young men who acquired a spinal cord injury resulting in quadriplegia and who wanted to live in the community and contribute to society. They created their own organisation, formerly known as the Australian Quadriplegic Association, which changed its name to SCIA in SCIA s Mission "Life without Barriers" is focused to get people back on track by finding the solutions to address barriers that may arise and to provide support to ensure people with a spinal cord injury and similar conditions remain actively involved in personal, social and vocational activities. Due to the increasing number of people surviving traumatic injuries, diseases and medical conditions and living with disability, Australia's increasing ageing population, as well as the implementation of the National Disability Insurance Scheme (NDIS), now known as DisabilityCare Australia, many people with disability will have the opportunity to increase their participation in society, and it is extremely important for all modes of transport conveyances, infrastructure and services to provide equitable access. SCIA has a proud history of successfully advocating for the development, implementation and improvement of the various types of disability, health, community, transport and general support services and programs, and it is anticipated that the Federal Government Department of Infrastructure and the Federal Attorney-General will give serious consideration to the content of this submission and positively respond to the issues and recommendations Submission Introduction: Spinal Cord Injuries Australia (SCIA) would like to thank the Federal Attorney-General and the Australian Law Reform Commission (ALRC) for undertaking this important Review of Equal Recognition before the Law and Legal Capacity for People Disability and providing SCIA the opportunity to make this submission. SCIA anticipates this submission will be given serious consideration and is able to clarify and/or provide further information about the submission if required. This submission does not address all of the review's terms of reference or the entire scope of the terms of reference, but provides comments and suggestions limited to the barriers that people with disability may encounter when they attempt to address disability discrimination through the Disability Discrimination Act (DDA) 2002 because of how the laws and legal frameworks operate in practice.

3 The DDA does provide the opportunity for people with disability to highlight, minimise or remove disability discrimination; however, it places the onus on an individual with disability to lodge a complaint with the Australian Human Rights Commission (AHRC). If the complaint is unable to be conciliated at the AHRC, the individual with disability has to decide whether to not pursue the complaint and let the discrimination to continue, or to pursue the complaint in the courts. Financial Barriers to Seeking Justice in a Disability Discrimination Complaint There is a disproportionately high number of people with disability that are unemployed and in receipt of CentreLink allowances and benefits, working in low-paid jobs in the open market or working in Australian Disability Enterprises (formerly known as sheltered workshops). If people with disability want to pursue a disability discrimination complaint through the Magistrates Court or Federal Ministries Court they are generally reliant on legal information, referral, advocacy and representation by community and/or disability legal services. For people with disability to be able to address disability discrimination, and have their legal rights fulfilled, it is extremely important for these community and/or disability legal services to be provided with appropriate levels of recurrent funding. Pursuing a complaint in the courts has many financial disincentives, barriers and risks, particularly if the person with disability is not seeking financial compensation or damages as part of the complaints resolution process. There are a number of significant factors that often deter people with disability from pursuing individual complaints including the risk of an adverse costs order if the complaint is unsuccessful or only partly successful; other priorities in one s day to day life such as time away from work; the cost of bringing proceedings including the costs of representation by solicitors and barristers and the cost of experts able to give evidence on questions of a technical nature. Spinal Cord Injuries Australia believes that the Federal Government, within the National Disability Strategy, must support the legal rights of people with disability and allocate an appropriate level of recurrent funding for disability advocacy services and community and disability legal services. Limitations of current options available to assist with legal costs, application for a 'costs cap' Prior to lodging a discrimination complaint in the Federal Court or Federal Magistrates Court seeking a 'costs cap' to limit any potential costs, you are required to cover the expenses of the respondent.

4 The 'costs cap' limit is at the discretion of the courts based on the income and assets of the complainant, and the total amount can still be considered relatively high for a person with disability, especially in the event that there is more than one respondent. E.g. a costs cap of $15,000 x 3 respondents = $45,000 total cost cap. For someone with often very small assets this is a major financial barrier, it could also be tantamount to a form of discrimination based upon financial capability rather than legal right. For the respondent, who has more capability of generating legal support fees, this is not as much of an issue. It is understood that when an individual with disability lodges a disability discrimination complaint with the courts, and is seeking financial damages or compensation as part of the settlement, it is unlikely that the court will grant a costs cap. However, when an individual with disability lodges a disability discrimination complaint without seeking financial damages or compensation, a 'costs cap' can be granted by the court. This raises the issues of fair restitution. The process currently supports people with disability to only raise cases that are more public good than personal restitution, even when they have been wronged themselves. Although the financial circumstances of each person with disability who lodges a disability discrimination complaint in the courts should be considered on an individual basis, when an individual with disability is seeking a 'costs cap' at the same time as not claiming any financial compensation, then Spinal Cord Injuries Australia recommends that the court should set a $0 'costs cap' in the event that the individual with disability's complaint was unsuccessful or partially unsuccessful. Equally the courts should recognise that where the complainant is seeking compensation the case should be studied for public good and if deemed to be in the public interest a cost cap should be considered to ensure that people with disability experience the same legal rights as everyone else. Financial assistance through the Attorney-General's Office Financial assistance can also be applied for a through the Attorney-General's Office under Clause 46 PU for assistance in proceedings before the court: (1) A person who: (a) has commenced or proposes to commence proceedings in the Federal Court or the Federal Magistrates Court under this Division; or (b) is a respondent in proceedings in the Federal Court or the Federal Magistrates Court under this Division; may apply to the Attorney General for the provision of assistance under this section in respect of the proceedings. (2) If a person makes an application for assistance and the Attorney General is satisfied that: (a) it will involve hardship to that person to refuse the application; and

5 (b) in all the circumstances, it is reasonable to grant the application; the Attorney General may authorise the provision by the Commonwealth to that person, on such conditions (if any) as the Attorney General determines, of such legal or financial assistance in respect of the proceedings as the Attorney General determines. However, the 46 PU financial assistance application form is required to be lodged prior to court proceedings, but the Attorney-General's decision to approve the application or not is made after the court proceedings have commenced. And as people with disability need to know what the potential financial costs and risks could be prior to lodging a complaint in the courts, and that the application for the 46 PU financial assistance may not be approved, there is a need to amend the 46 PU application and approval procedure to enable the Attorney-General to consider an application prior to the complaint being lodged in the courts. Spinal Cord Injuries Australia believes that the 46 PU financial assistance application process needs to be amended to enable the individual with disability to make an application, and obtain a decision by the Attorney-General, prior to lodging a disability discrimination complaint in the courts. The DDA and the supporting Standards The DDA has a number of supporting standards and guidelines including the Access to Premises Standards, Education Standards and Disability Standards for Accessible Public Transport (Transport Standards) for people with disability, containing specific requirements to ensure equitable access to services and facilities for people with disability with the aim of removing or minimising discrimination. The DDA Standards and Guidelines are provided for the relevant stakeholders, such as architects, builders, access consultants and building certifiers, schools and universities, transport service operators and providers etc The aim being to ensure they provide accessible and equitable access to services and facilities for people with disability. However, the DDA Standards and Guidelines can be, and have been, interpreted in such a way that it has resulted in people with disability being treated differently with services and facilities having limited or no access to people with disability, their family, friends and carers. However, the problem with the DDA Standards and Guidelines, and specifically the Transport Standards, is that generally the State and Territory Governments, and their relative departments are the public transport operators and providers. They have the role and responsibility of developing and monitoring their own Public Transport Action Plans. They are also responsible for registering and licensing wheelchair accessible taxis (WAT). The process being to confirm the vehicles modified as WATs are compliant with the Transport Regulations, Transport Standards and other relevant standards for wheelchair restraints,

6 boarding ramps, as well as the Australian Design Rules. The Transport Standards also have numerous five yearly compliance milestones. These relate to the transport conveyances, infrastructure and transport services and facilities. There is currently no overarching authority with the role and responsibility of monitoring to ensure transport conveyances, infrastructure and services and facilities are compliant, or remain compliant, with the Transport Standards. This results in the only compliance enforcement mechanism being undertaken by individual people with disability making formal complaints to the AHRC, seeking resolution of such complaints either through conciliation at the AHRC or through a subsequent legal process through the courts. This places the onus on individuals with disability. It would be better system if an independent body or organisation, preferably the AHRC, could be provided with the authority, role and responsibility to oversee the Transport Standards to ensure transport providers and operators are compliant with all aspects of public transport, including airline travel and wheelchair accessible taxis, as well as achieving full compliance with the numerous five yearly compliance milestones. In respect of any new transport conveyances, infrastructure and equipment, services and facilities, immediate and full compliance with the Transport Standards is mandated. Spinal Cord Injuries Australia recommends that the AHRC should be provided with the role and responsibility, including appropriate recurrent funding, to oversee compliance, including the timetable for achieving full compliance, of all transport modes covered by the Transport Standards. The AHRC should also be provided with the authority to issue binding judgements and conditions on transport operators and providers that have non-compliant services, facilities and infrastructure. We also recommend that a Disability Commissioner position is created within the Department for Social Services. That Commissioner will have the role of ensuring that all federally created disability legislation, standards and policies are correctly interpreted at the state government and councils levels. This will end the issues of localised misinterpretation. Legal Support Services People with disability are all individuals with unique circumstances. Accessing the law may only be possible with the pro bono support provided by community and disability legal and law support services. As you are probably aware, there is a disproportionately high number of people with disability that are unemployed, low aid employed or in receipt of CentreLink allowances and benefits. Due to this, many people with disability are generally reliant on legal information, referral, advocacy and representation by community and/or disability legal services. For people with disability to be able to highlight and address disability discrimination and obtain

7 justice, it is extremely important for these community and/or disability legal services to be provided with appropriate levels of recurrent funding to meet the demand. Community legal centres often support people with legal advice across a very diverse range of topics from immigration advice, debt and defaults, aged discrimination as well as disability discrimination. With their general under resourcing and lack of specialisation it can be difficult to first get an appointment and second to get the specific advice that you need. Furthermore, with the Federal Government developing and implementing the National Disability Strategy, of which the development and launch of the National Disability Insurance Scheme (NDIS) is a part of it. People with disability will have an increasing opportunity to participate in the community as active citizens. Although this is an extremely positive outcome for people with disability and for the community in general, there is a possible or probable likelihood that there will be an increase in incidences of direct and indirect discrimination. Spinal Cord injuries Australia recommends that appropriate levels of recurrent funding be provided to community and disability specific legal and law services and resources to assist people with disability if they seek legal advice and representation if and/or when they encounter direct or indirect discrimination. Spinal cord Injuries Australia would like to thank Mark Dreyfus QC MP, Attorney-general of Australia for the opportunity to provide feedback on this topic. SCIA Policy Team

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