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Gauntlett, Ben --- "Editorial: The need for change" [2022] PrecedentAULA 35; (2022) 171 Precedent 2

THE NEED FOR CHANGE

By Dr Ben Gauntlett

The interrelationship of disability and the legal system is complicated. For Australia to treat people with disability as equals requires a clear emphasis on law reform and appreciation of people with disability as the holders of rights. This issue of Precedent highlights the varied ways people with disability interact with the legal system and its complexity.

Australia signed the Convention on the Rights of Persons with Disabilities (CRPD) in 2007 and ratified the CRPD in 2008. The CRPD sought to recognise people with disability as the holders of rights and move away from medical conceptions of disability.

In response to Australia’s entry into the CRPD, all levels of government in Australia (Commonwealth, state, territory and local government) entered into the National Disability Strategy 2010–2020, and out of this policy framework the National Disability Insurance Scheme (NDIS) was developed. However, for people with disability to thrive in Australia it is necessary to appreciate their lives are affected by the law and policy of all levels of government. Furthermore, there is no uniform definition of ‘disability’ in Australian law, which creates uncertainty in underlying policy frameworks.

It is hoped Australia’s Disability Strategy 2021–2031 will go closer to achieving equality for people with disability, but a significant number of changes are needed. Some are incremental but many are wholesale in nature and will take time. Community attitudes are a critical issue. The varied nature of some of the articles in this edition of Precedent highlights this need for change.

For example, two articles highlight the interrelationship between disability, poverty and the ongoing vulnerability of people with disability in the community. Chailloux has written on the increased likelihood of homelessness for people with disability caused by a need for more fit for purpose social and affordable housing and for reform of our social security system. Similarly, Rose’s article considers children with disability in out of home care and the lack of diagnosis of disability, lack of disability data and the lack of accessible services (including those provided by the NDIS. Rose submits that an early diagnosis of underlying disability and access to appropriate services is critical for the welfare of people with disability. Both articles highlight the practical implications of laws affecting people with disability in vulnerable circumstances in the community.

By contrast, three articles consider the need for the legal system to adapt to the needs of people with disability. Morris and Watson’s article considers supporting people with intellectual disability in the criminal justice system and the need to change the system through educating and training workers, making reasonable adjustments and providing better links to support services. Grano examines the decision of the Victorian Civil and Administrative Tribunal in HHY (Guardianship) [2022] VCAT 97, which considered whether a substitute decision-maker could authorise the use of physical restraint to ensure a person with disability could receive medication under the newly enacted Guardianship and Administration Act 2019 (Vic). While it is noted that the decision is significant in Victoria in terms of how restrictive practices can be used in health services, the effect of the decision elsewhere is uncertain. Finally, McGregor and Asphyxia describe the need for communication courtesy to enable d/Deaf equality before the law. In their view, there is a need for systems and processes to adapt to the need of d/Deaf citizens, but also for community attitudes and awareness to change concerning the needs of people with disability.

The need for community awareness is highlighted by Dalton, Alexander and Wade, the founders of the Disabled Australian Lawyers Association, who discuss the need for a more inclusive legal profession in Australia. The authors note the current experience of Australian lawyers and provide recommendations for reform drawing on overseas examples to highlight how attitudinal and systemic barriers can be addressed.

It is impossible to do justice to all the articles in this issue in this editorial. Their diverse nature reflects the diversity of backgrounds of people with disability in Australia. Some of the issues raised are highly technical while others are attitudinal in nature, but for the people with disability involved they are all important.

Dr Ben Gauntlett is the Commonwealth Disability Discrimination Commissioner at the Australian Human Rights Commission.