Bringing the NSW Disability Inclusion Act in line with the UN Convention on the Rights of Persons with Disabilities

Abigail moved several amendments to the Disability Inclusion Act to ensure all people with disability in our state are looked after. The LNP Government and the Labor Party blocked the majority of Abigail's amendments, however we were able to pass three amends!

Abigail said:

On behalf of The Greens, I speak in support of the Disability Inclusion Amendment Bill 2022, although I indicate I will move a number of amendments to strengthen the bill and the Disability Inclusion Act 2014 in the Committee stage. People with disability are entitled to the same fundamental rights, freedoms and responsibilities as other members of the community. The Disability Inclusion Act was groundbreaking legislation in that for the first time the rights of people with disability in New South Wales were enshrined in law. However, as was covered significantly during debate on the original bill at the time, the Act gives the Government the ability to pick and choose which rights it wishes to afford people with disability and when. Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities, yet the objects of the Act require the support of the rights enshrined in this convention only "to the extent reasonably practicable". That is not good enough.

The Greens will seek to remedy that gross insult to people with disability and to strengthen other parts of the objects and principles of the Act. The Disability Inclusion Amendment Bill responds to the recommendations of the 2020 statutory review of the Disability Inclusion Act 2014. The review found that, with the exception of now-redundant sections of the Act relating to the NDIS, the Act's policy objectives are still valid and there is room to improve the implementation of the objectives. The Greens support the amendment of the Act to require the Government and public authorities to renew theNSW Disability Inclusion Plan and disability inclusion action plans respectively every four years.

The Greens also support the requirement to publish these plans in formats accessible to people with disability. However, we believe that there is room to further improve monitoring, consultation, evaluation and reporting and we will be moving amendments to do so. The Disability Inclusion Act came about while the NDIS was still in development and it was made clear that the intention of the original Disability Inclusion Bill 2014 was for the management of the provision of disability supports to be handed over to the NDIS when it became fully operational. For this reason, we also support the substantial deletion of parts 4 and 5 of the Act.

However, in the light of well-documented failures of the NDIS due to bureaucracy, coverage and the policy and budgetary choices made by Federal governments, The Greens have concerns about the complete repeal of the ability to provide financial assistance to individual people with disability, and we will be working closely with the disability advocacy sector to monitor the impact of this change.

 

Abigail then moved Greens amendments, which are as below.

Ms ABIGAIL BOYD (16:42): I move The Greens amendment No. 1 on sheet c2022-108A:

No. 1 Objects of Act

Page 3, Schedule 1. Insert after line 2—

[1A] Section 3 Objects of Act

Insert before section 3(a)—

(a1) to uphold the purposes and principles of theUnited Nations Convention on the Rights of Persons with Disabilities,

[1B] Section 3(e)

Omit the paragraph.

This amendment seeks to bring the Disability Inclusion Act in line with the United Nations Convention on the Rights of Persons with Disabilities by striking from the fifth object of the Act the words, "to the extent reasonably practicable" and replacing "support" with "uphold". It also seeks to promote it to the first object from being the fifth object. Australia ratified the United Nations Convention on the Rights of Persons with Disabilities in 2008, which is now 14 years ago. We have an obligation to uphold the convention's principles in totality, not just when it is convenient to, but these words allow the Government to make unaccountable decisions about when it wants to care about these obligations.

There is no framework as to what "reasonably practicable" means: Reasonable to whom? On whose terms? Reasonable to people with a disability? When there is international and national recognition that people with disability should have equal access to the rights and freedoms of other members of the community, we should not be affording the Government the ability to make its own call about whether providing equality to people with disability is worth it to its budget bottom line, or to the bottom line of its stakeholders and donors.

The amendment has been supported by the Ageing and Disability Commission's submission to the statutory review of the Disability Inclusion Act as well as by submissions from organisations such as Local Government NSW and the Physical Disability Council of NSW. I also note that the Hon. Mick Veitch as well as The Greens former Ms Jan Barham both moved amendments to the original bill to that effect when it was debated in 2014. This amendment is not controversial, only inconvenient for the Government. There is no reason to continue to provide an out to our international human rights obligations. I commend the amendment to the Committee.

 

The CHAIR (The Hon. Wes Fang): Ms Abigail Boyd has moved The Greens amendment No. 1 on sheet c2022-108A. The question is that the amendment be agreed to.

Amendment negatived - the amendment did not pass.


Ms ABIGAIL BOYD (16:46): I move The Greens amendment No. 2 on sheet c2022-108A:

No. 2 Objects of Act

Page 3, Schedule 1. Insert after line 2—

[1C] Sections 3(b) and 4(3)

Insert ", political" after "social" wherever occurring.

This amendment inserts into the objects and general principles of the Act the right to political participation in line with the United Nations Convention on the Rights of Persons with Disabilities. Currently, the objects and general principles echo the convention in relation to social and economic rights of people with disability but failed to extend the reflection of the convention to political rights.

Governments worldwide have historically politically disenfranchised people with disability. From failures to provide accessible political communications to the exclusion from the voting roll of people with perceived or actual intellectual or psychosocial disability under outdated and offensive unsound mind clauses. This is still happening in New South Wales today. We can and should do better—in fact we have an obligation to do better. People with disability have a right to political enfranchisement under the United Nations Convention on the Rights of Persons with Disabilities and this should be reflected in the Disability Inclusion Act.

 

The CHAIR (The Hon. Wes Fang): Ms Abigail Boyd has moved The Greens amendment No. 2 on sheet c2022-108A. The question is that the amendment be agreed to.

Amendment negatived - the amendment did not pass.


Ms ABIGAIL BOYD (16:49): By leave: I move The Greens amendments Nos 3 and 4 on sheet c2022‑108A in globo:

No. 3 General principles

Page 3, Schedule 1. Insert after line 2—

[1D] Section 4 General principles

Insert after section (4)(1)—

(1A) People with disability have the same fundamental human rights and responsibilities as other members of the community.

No. 4 General principles

Page 3, Schedule 1. Insert after line 2—

[1E] Section 4 General principles

Omit subsection 4(10). Insert instead—

(10) People with disability have the right to pursue complaints and access justice.

Amendment No. 3 inserts into the general principles of the Act an affirmation that people with disability have the same fundamental human rights and responsibilities as other members of the community to act as an overarching statement that directly links to the Convention on the Rights of Persons with Disabilities through which the other principles can be read. Amendment No. 4 expands general principle 10 to include not just the right to pursue complaints but also to access justice. This brings this principle more directly in line with article 13 of the Convention on the Rights of Persons with Disabilities, which concerns access to justice. This is an important distinction for two reasons: First, the use of the word "justice" includes the justice system in addition to the narrow service and care context in which complaints are applicable; secondly, "access" captures the need to make accommodations that facilitate the accessibility needs.

The CHAIR (The Hon. Wes Fang): Ms Abigail Boyd has moved The Greens amendments Nos 3 and 4 on sheet c2022‑108A. The question is that the amendments be agreed to.

Amendment negatived - the amendment did not pass.


Ms ABIGAIL BOYD (16:52): I move The Greens amendment No. 5 on sheet c2022‑108A:

No. 5 Principles recognising the needs of particular groups

Page 3, Schedule 1. Insert after line 2—

[1F] Section 5 Principles recognising the needs of particular groups

Insert after section 5(5)—

(5A) Supports and services provided to LGBTIQ+ people with disability are to be provided in a way that—

(a) addresses the needs of LGBTIQ+ people with disability, and

(b) is informed by consultation with LGBTIQ+ people with disability.

This amendment inserts into the principles recognising the needs of particular groups the recognition of LGBTIQ+ people. I note that general principle (6) of the Act states that:

People with disability have the right to respect for their cultural or linguistic diversity, age, gender, sexual orientation and religious beliefs.

The statutory review into the Act found that this is sufficient recognition of the needs of LGBTIQ+ people with disability. LGBTIQ+ with disability—like Aboriginal and Torres Strait Islander people with disability, people with disability from culturally and linguistically diverse backgrounds, women with disability and children with disability—all of whom are recognised under section 5, are at particular risk of discrimination and marginalisation and barriers to inclusion. For example, access to health treatment is a point of particular concern for LGBTIQ+ people with disability. For those reasons it is necessary to amend this section.

This amendment was agreed to and passed successfully with a majority vote.  


Ms ABIGAIL BOYD (17:07): I move The Greens amendment No. 6 on sheet c2022-108A:

No. 6 Definition of public authority

Page 3, Schedule 1. Insert after line 11—

[2A] Section 7 Definitions

Insert after section 7(1), definition ofpublic authority, paragraph (a)—

(a1) a NSW Government agency,

The amendment clarifies that all government agencies, not just government departments, are legislatively required to develop disability inclusion action plans. That will then include agencies like TAFE NSW and all emergency services. Many government agencies already develop disability inclusion action plans and therefore the amendment does not significantly increase the workload of the agencies. It ensures there is a demonstrated commitment to the Convention on the Rights of Persons with Disabilities.

The CHAIR (The Hon. Wes Fang): Ms Abigail Boyd has moved The Greens amendment No. 6 on sheet c2022-108A. The question is that the amendment be agreed to.

Amendment negatived - the amendment did not pass.


Ms ABIGAIL BOYD (17:11): By leave: I move The Greens amendments Nos 7 and 10 on sheet c2022‑108A in globo:

No. 7 State Disability Inclusion Plan

Page 3, Schedule 1. Insert after line 13—

[3A]Section 10(1)

Omit ", and" from section 10(1)(a). Insert instead—

(the government goals), and

(a1)sets out the steps necessary to achieve the government goals, including—

(i)who is responsible for the implementation of the government goals, and

(ii)the period within which the government goals must be achieved, and

(iii)the metrics that will be used to determine the impact of the implementation of the government goals on people with disability, and

No. 10Review of State Disability Inclusion Plan

Page 3, Schedule 1. Insert after line 21—

[6A]Section 11(2)

Omit the subsection. Insert instead—

(2)The purpose of the review is to—

(a)assess the whole of government progress towards implementing the government goals set out in the State Disability Inclusion Plan, and

(b)if the government goals were not implemented or achieved— determine the reasons why the government goals were not achieved or implemented, and

(c)evaluate the effectiveness of the government goals, and

(d)identify changes required to the State Disability Inclusion Plan in order to ensure the Plan—

(i)supports the inclusion in the community of people with disability, and

(ii)improves access to mainstream services and community facilities by people with disability.

These amendments add requirements for the comprehensive evaluation of State Disability Inclusion Plan progress, not just its review and remaking. In particular, amendment No. 7 strengthens accountability for implementing the plan by requiring the publishing of information about who is responsible for the implementation of each of the plan's goals, the time line for each goal and the metrics that will be used to determine the impact on people with disability. Amendment No. 10 builds on that by strengthening the plan's review process. Instead of simply ensuring the plan continues to support the inclusion of people with disability in the community, the review will require an assessment of progress, including determining reasons goals were not achieved or implemented, if that is the case; evaluation of the effectiveness of the goals; and identification of changes required in the plan. That will prevent the review process simply becoming a box-ticking exercise by ensuring that the Government is required to evaluate the effectiveness of the identified strategies, identify any changes that are required to the plans and establish how any barriers to achieving the goals will be overcome.

A number of statutory review submissions, including from the Ageing and Disability Commission, called for a strengthening of the review requirements in the Act. The Physical Disability Council of NSW put it well in its submission when it wrote:

There is currently very little accountability, and no provision for who is responsible for reporting on the DIP, nor how or when reporting must occur. This means it is difficult to know whether the targets are being met. PDCN believes there needs to more accountability and monitoring to ensure the DIP does not become a stagnant, perfunctory piece of writing.

A DIP should outline not only the State’s vision for disability inclusion, but also the impact and outcomes sought, the steps necessary to achieve these, where responsibility for implementation should be vested, specific actions and targets on when these actions are to be achieved and the consequences if targets are not met.

Any framework developed should also articulate the mechanism by which outcomes will be measured – again, we consider that the outcomes should be based on positive impacts on persons with disability, not the completion of projects …

The CHAIR (The Hon. Wes Fang): Ms Abigail Boyd has moved The Greens amendment Nos 7 and 10 on sheet c2022-108A in globo. The question is that the amendments be agreed to.

Amendment negatived - the amendment did not pass.


Ms ABIGAIL BOYD (17:16): I move The Greens amendment No. 8 on sheet c2022-108A:

No. 8 State Disability Inclusion Plan

Page 3, Schedule 1. Insert after line 13—

[3B] Section 10(2)

Omit the subsection. Insert instead—

(2)In preparing the State Disability Inclusion Plan, the Department must consult with—

(a)people with disability, and

(b)the Disability Council, and

(c)disability advocacy organisations.

This amendment expands on the existing requirement for the Government to consult with people with disability when preparing the State Disability Inclusion Plan by also requiring consultation with the Disability Council NSW and disability advocacy organisations. Currently it could be argued that a brief discussion with a small group of persons with disability fulfils the consultation obligation under the Act. This amendment creates a much more comprehensive consultation framework that ensures third-party experts are given the opportunity to contribute to the review and remaking of the State Disability Inclusion Plan.

The CHAIR (The Hon. Wes Fang): Ms Abigail Boyd has moved The Greens amendment No. 8 on sheet c2022-108A. The question is that the amendment be agreed to.

Amendment agreed to and passed successfully.


Ms ABIGAIL BOYD (17:17): I move The Greens amendment No. 9 on sheet c2022-108A:

No. 9 State Disability Inclusion Plan

Page 3, Schedule 1. Insert after line 13—

[3C] Section 10(4)

Omit the subsection. Insert instead—

(4)The State Disability Inclusion Plan must not form part of another document.

This amendment creates a requirement for the State Disability Inclusion Plan to stand alone as its own document, rather than being published as part of a document prepared for another purpose. Ensuring the State Disability Inclusion Plan is a standalone document gives due recognition to the importance of disability inclusion and makes the plan more accessible to the public. Governments that are held to account by the public are always better for it. Ensuring that the State DIP is a living document that can be engaged with easily will improve disability inclusion in this State.

The CHAIR (The Hon. Wes Fang): Ms Abigail Boyd has moved The Greens amendment No. 9 on sheet c2022-108A. The question is that the amendment be agreed to.

Amendment agreed to and passed successfully. 

 

 

 

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