PWDA welcomes the opportunity to provide preliminary comments on the New South Wales Law Reform Commission’s (NSWLRC) review of the Anti-Discrimination Act 1977 (NSW) (ADA).
PWDA is Australia’s peak cross-disability Disability Representative Organisation and is also funded to provide cross-disability systemic advocacy on behalf of people with disability in New South Wales under the Department of Communities and Justice’s Disability Advocacy Futures Program. Nationally 4.4 million Australians have a disability, around 17.7% of the population. The most recent data shows that 16.9% of the NSW population have a disability, equivalent to 1,346,200 residents.
When compared with people without disability, people with disability continue to experience discrimination and poorer life outcomes across all life domains. It is estimated that 22% of people aged over 15 with disability in Australia have experienced some form of discrimination compared with 15% of those without disability. Disability discrimination is the largest ground of complaint to Anti-Discrimination NSW (ADNSW) and the Australian Human Rights Commission (AHRC). Discrimination against people with disability appears deeply entrenched across systems.
Governments have an obligation to respect, protect and fulfil human rights. Disability Rights are Human Rights. However, the ADA is now regarded as ‘out of step with community standards and expectations’ and no longer an example of best practice anti-discrimination legislation.
The overarching theme of this preliminary submission is that the ADA must support the achievement of substantive equality, and this can be assisted with the introduction of positive duties to provide reasonable adjustment and prevent discrimination.
PWDA believes the goal of substantive equality is to ensure the full equal inclusion and participation of all people across all social, community, political and economic domains. The concept of substantive equality ‘resists capture by a single principle’. Central to our conception of substantive equality is:
- a celebration and respect for human diversity and human dignity reflected in all decision-making
- a consideration of a person’s existing individual circumstances and experiences when they interact with systems so that where necessary measures can be put in place to provide equality of opportunity and equality of outcomes; and
- the building of inclusive frameworks across systems in which accessibility is factored in from the beginning and discrimination is challenged at its roots.
This is contrasted with the dominant formal equality perspective based on the principle of ‘likes treated as likes.’ A formal approach to equality is not concerned with equality of outcomes, does not consider an individual’s characteristics or ‘differences’ for this purpose, and is not concerned with combatting entrenched systemic discrimination.