25 September 2024
Today Abigail introduced a Greens bill to expand our existing anti-vilification laws to protect people from disability from vilification and offensive behaviour. This is the first time a bill has been brought before NSW Parliament to introduce disability anti-vilification protections.
Abigail said:
I am pleased to introduce the Anti-Discrimination and Crimes Legislation Amendment (Disability) Bill 2024, which will insert anti-vilification protections on the basis of disability into the Anti-Discrimination Act 1977 and the Crimes Act 1900. These provisions will make it unlawful to incite hatred towards, serious contempt for, or serious ridicule of a person on the grounds of disability and make it an offence to threaten or incite violence on the grounds of disability. The bill will also insert new offensive behaviour protections into the Anti‑Discrimination Act, making it unlawful to offend, insult, humiliate or intimidate another person or a group of people because of race, religion, disability, sexual orientation, gender identity or intersex or HIV/AIDS status.
The question of whether our laws, policies and practices properly uphold and realise the rights of people with disability is one which has been debated for many years. Though Australia was one of the first Western countries to ratify the United Nations Convention on the Rights of Persons with Disabilities in 2008, almost two decades later Australia still has yet to fully implement most principles of the convention into our laws, policies and practices, nor have we begun to properly embed its principles into our broader society. Protecting people with disability against harassment, abuse and vilification in our laws—a simple yet crucial reform—has long been advocated for across Australia. We cannot create a truly inclusive society without ensuring people with disability are comprehensively protected from all forms of discrimination, harassment, abuse, neglect and exploitation within the full remit of our laws.
The landmark Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability heard harrowing evidence of people with disability being subjected to cruel and ongoing discrimination, harassment and vilification. Volume 4 of the royal commission's final report, entitledRealising the human rights of people with disability, delved into just how prevalent and pervasive ableist prejudice is in Australia, materialised across all areas of society in the form of discrimination, harassment and vilification of people with disability. As noted in that volume, when the Federal Disability Discrimination Act [DDA] was enacted in 1992, people with disability and their advocates were hopeful that it would lead to transformational change across our society, yet decades later those expectations are far from realised. In order to properly ensure the human rights of people with disability, promote substantive equality and foster meaningful inclusion, we must actively carry out widespread societal reform, beginning with our legislative framework at both a Federal as well as a State and Territory level.
Recommendation 4.30 (a) of the disability royal commission consequently called for action at a Federal level to protect against disability vilification by amending the DDA to insert a new "vilification because of disability" provision. The Federal Labor Government accepted that recommendation in principle but made no commitment to implement it. Recommendation 4.30 (b) called for States and Territories that already have legislation imposing criminal penalties for vilification of people on grounds that do not include disability to extend those laws to include vilification of people on the ground of disability. Disappointingly, in its response the New South Wales Labor Government fell short of committing to that recommendation, describing it as "subject to further consideration".
The Government has justified that timidity by reference to the ongoing NSW Law Reform Commission review into the Anti-Discrimination Act. Respectfully, I submit that the Law Reform Commission has been given a mammoth task that traverses a range of complex and nuanced territory, but within that contested space are a number of clear and distinct islands of simple to implement and commonsense reforms. The inclusion of anti‑vilification protections on the basis of disability is one such island. Its justification has already been made out comprehensively, its likely impacts already well understood and the social benefit is clear and obvious to anyone who has witnessed and shared in the pain of a friend or loved one or, indeed, a total stranger being subjected to gross public displays of hatred, contempt or ridicule as a result of their disability. I hope that all members of this Chamber are able to join me in asserting the simple truth that the incitement of hatred, public contempt or ridicule on the basis of someone's identity or ability is unacceptable, and our laws should serve to uphold that simple but profound principle.
Discrimination is understood as unfair or less favourable treatment of a person or group of people. Vilification, on the other hand, is the public incitement of hatred, offence, insult, ridicule, humiliation or intimidation of, or the threatening of violence toward, a person or group of people on the basis of one or more characteristics. Vilification typically occurs over an extended period of time and oftentimes in a covert or insidious manner. It can be embarrassing or frightening and cause considerable long-term harm. Disability vilification often occurs through the use of ableist and derogatory slurs that, although they are common and normalised in some people's vocabulary, are built on systemic prejudice and hatred of people with disability.
The concept of "offensive behaviour" constitutes a lower threshold of abuse and harassment than vilification and is an act of a person that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people. The following examples were given in the disability royal commission's report, which states:
Mr Tim Marks told us after he became an amputee, people would refer to him as a 'cripple', 'useless', or an 'inconvenience'. Mr David Gearin described being verbally abused while walking with his guide dog, Odin. He was sworn at, called a 'bludger' and spat on. Ricki Spencer, a transgender First Nations woman, was forcefully bumped into, spat on and had things thrown at her.
Although the eradication of disability vilification, and indeed all forms of abuse and harassment of people with disability, cannot be done by law reform alone, the bill is a critical step in affirming that such behaviour is not tolerated in our community. It will provide avenues of redress for victims and entrench the right to equality and respect for all people with disability within the fabric of our society.
A clear line can be drawn between the historical eugenics movement and the modern-day devaluation of disabled lives. Eugenics, which is rooted in a belief in improving the human race through selective breeding, often targeted disabled individuals, deeming them "unfit" and advocating for their segregation or even sterilisation. The field of eugenics is all too often associated with supremacist ideologies—with the notion of a superior race or group often relying on the exclusion and denigration of those deemed inferior. Disability has historically been used as a marker of such inferiority, with disabled people portrayed as a threat to the purity and strength of the master race, justifying their mistreatment, exclusion and any number of atrocities. It is easy to see in such examples how the vilification of disabled people, promoted through supremacist ideology, was able to be weaponised into broader support for systems of oppression, inequality and abuse.
While the overt practice and theory of eugenics has been largely discredited and relegated from mainstream discourse, its underlying ideology persists. It is worth reflecting on the unique dangers posed to disabled people by that ideology as we once again witness the global rise of fascist and supremacist ideologies. Indeed, those ideologies continue to shape contemporary attitudes and practices. Even in the absence of explicit eugenic policies, the legacy of such thinking continues to permeate our collective subconscious and influences societal perceptions of disability. All too aware of the perils of othering, the presence of disability to many able-bodied people can serve as a reminder of human frailty and their own vulnerability. That can evoke feelings of unease and even fear, leading some to devalue or ostracise disabled people. Disability then becomes a sort of societal taboo to be avoided or even denied. That can manifest in the medicalisation of disability, where the focus is on fixing or normalising individuals rather than accepting and accommodating their differences. It can also be seen in the lack of accessible infrastructure and opportunities, which effectively excludes disabled people from full participation in society.
We are uniquely vulnerable, as subjects under the capitalist mode of production. That economic system and its attendant ideological superstructure places immense value on productivity, efficiency and the ability to contribute to economic growth. Under the Fordist mode of modern capitalism, each person is not an individual but is, rather, a homogenous and interchangeable unit of economic production. Individuals with disabilities, who may require accommodations or face limitations in their ability to work in traditional ways, do not fit that model so neatly and are perceived as a burden or an obstacle to progress. That often results in their marginalisation and exclusion, including from employment opportunities, or their relegation to low-paying, marginalised jobs, perpetuating their economic and social disadvantage and reinforcing the idea that their lives are less valuable or less meaningful.
It is crucial to also recognise that the vilification of disability often intersects with other forms of discrimination, such as racism, sexism and homophobia. People who belong to multiple marginalised groups often experience compounded prejudice and exclusion. At its core, discrimination and inequality in those contexts originates from a history of vilification, informed by deeply ingrained societal structures that continue to perpetuate and permit the vilification of disability. In order to overcome those barriers, we need a radical shift in perspective that embraces human diversity and recognises the inherent worth of all individuals, regardless of their abilities or perceived limitations. That shift starts with a clear and unambiguous rejection of and protection against vilification.
In New South Wales, even language used by judges at sentencing in countless cases concerning deaths of disabled people at the hands of carers perpetuates the rhetoric that devalues and vilifies people with disability as burdens to their carers and to society. That ableist narrative is covert yet ever more pervasive, and it perpetuates common societal attitudes overlooking and oftentimes condoning violent crimes toward people with disability. Witnesses with disability during public hearings of the disability royal commission described instances of persistent public discrimination and harassment, with many explaining that abuse is a common occurrence whenever they leave their homes—in shopping centres, in parks, on public transport, in bars and on the street. Witnesses spoke about varying experiences of vilification, some occurring over years in what was perceived to be less serious or minor incidents, but it happened persistently and had profound long-term impacts. Some shared stories of being called offensive names and ableist slurs, while others relayed reaching out for support only to be told to ignore the abuse or try to avoid it by not frequenting certain places.
Schools are commonly a setting where people with disability experience vilification and the normalisation of ableism for the first time, with discrimination, harassment and abuse often beginning slowly and continuing for years. Family Advocacy, which is an independent advocacy organisation managed and staffed by parents and allies of people with disability, regularly supports countless families who have experienced persistent and ongoing discrimination, abuse and vilification within the New South Wales education system, including private and public mainstream and segregated settings.
One family shared the story of their daughter with Down syndrome—referred to here as Olive—who is now in year 6 and has experienced persistent discrimination, exclusion and segregation from her peers and educators in her mainstream public school. In the playground, Olive's peers are assigned to observe her and, following recess or lunch, she is often asked to stand in front of the class while the other students point out her perceived mistakes. This practice of singling her out is both humiliating and detrimental to her social and emotional wellbeing. Inside the classroom, instead of being provided with curriculum adjustments that would allow her to engage with the learning material alongside her peers, Olive is frequently placed in a separate room with a school learning support officer where she plays games rather than participate in academic activities. Despite her clear desire to remain in the classroom with her peers and participate in the same lessons, she is continuously removed, which further limits her social interactions and learning opportunities.
Olive has expressed feelings of embarrassment and distress and has described the severe impact that persistent discrimination and exclusion has had on her self-esteem and emotional wellbeing. She has developed anxiety related to her school environment and feels increasingly marginalised. The consistent removal of Olive from her peers also reduces her ability to form meaningful friendships and to be part of the broader school community. The long-term consequences of that kind of exclusion and discrimination extend beyond Olive's school years. The lack of social integration and academic engagement can severely affect her development of life skills, limiting her opportunities for further education, employment and independence in adulthood. Continued experiences of exclusion and bullying may also lead to ongoing mental health challenges, including depression and anxiety, which can persist into adulthood. That increasingly diminishes Olive's confidence and reduces her ability to advocate for herself, ultimately affecting her capacity to live a fulfilling and autonomous life and rendering her increasingly vulnerable to instances of further offensive behaviour and vilification later in life.
Stories like Olive's exemplify the harm that this bill is seeking to prevent. We must embed inclusion and equality into our laws and expressly prohibit all forms of discrimination, harassment, abuse and offensive behaviour. Currently the Australian Capital Territory, the Northern Territory and Tasmania are the only jurisdictions in Australia to expressly prohibit vilification on the basis of disability in their legislation, although several other jurisdictions have made notable progress in reviewing their existing laws and proposing the necessary changes. The Victorian Legislative Assembly Legal and Social Issues Committee recommended the extension of Victorian anti-vilification laws to include people with disability in its 2021 report on anti-vilification protections. The Victorian Government supported that recommendation in principle, indicating that it would carefully consider the extension of anti-vilification laws. In 2022 the Law Reform Commission of Western Australia recommended amending the Equal Opportunity Act 1984 to make vilification on the grounds of disability unlawful, which the Western Australian Government indicated its willingness to support.
Following the Queensland Human Rights Commission's review of Queensland's anti-discrimination laws, the final report of which was tabled in 2022, the Queensland Government developed a new draft Anti‑Discrimination Bill, which currently remains in draft form. The draft bill introduces disability as a protected characteristic in Queensland's existing anti-vilification provisions. In its submission to the South Australian Parliament's Social Development Committee's Inquiry into the Potential for a Human Rights Act for South Australia, the Disability Advocacy and Complaints Service of South Australia called for a human rights Act to prohibit vilification on the basis of disability.
In New South Wales, the Anti-Discrimination Act 1977 currently prohibits racial, transgender, religious, homosexual and HIV/AIDS vilification, and the Crimes Act 1900, under section 93Z, makes it an offence to publicly threaten or incite violence on the grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status. In 2023, after decades of community pressure for reform of our antiquated anti‑discrimination laws, the New South Wales Government referred the Anti-Discrimination Act to the NSW Law Reform Commission for review, with one of the terms of reference being: "… the adequacy of protections against vilification, including (but not limited to) whether these protections should be harmonised with the criminal law."
Countless stakeholders and members of the public made submissions to the review, with many putting forth proposals for prohibiting disability vilification. Among them was Anti-Discrimination NSW, which said: ADNSW supports a consideration of expanding anti-vilification protections beyond the existing grounds to ensure that people in NSW live without abuse based on attributes protected under anti-discrimination law. The Public Interest Advocacy Centre also said: A review of the ADA should also consider updating vilification provisions to cover all protected attributes, particularly disability, and ensuring consistency in the Crimes Act offence … And the Law Society of New South Wales said: … consideration should also be given to extending the anti-vilification provisions to cover disability.
To date the NSW Law Reform Commission's review remains underway. However, there is nothing precluding the New South Wales Government taking action in the meantime to legislate against disability vilification. In fact, just a matter of weeks after commencing that review, the Government introduced and passed amendments to the Anti-Discrimination Act in relation to religious vilification, without worrying about receiving the results of that review first. The review of the Anti-Discrimination Act extends far beyond the scope of disability vilification, considering an entire modernisation of our anti-discrimination laws. We do not have to wait for that to conclude and recommend introducing disability anti-vilification protections, only for the Government to take months to respond with lacklustre, in-principle support for crucial reforms. The longer we delay embedding legal protections against disability vilification in our laws, the longer people with disability will continue to suffer under our ableist systems, policies and laws.
The Federal Disability Discrimination Act 1992 is widely known to be ineffective and inadequate in preventing and responding to the discrimination and harassment people with disability face on a regular basis, across all areas of society, despite what governments may argue in defending their complete lack of will and ambition to embed inclusion and access in our laws and policies. Though the Disability Discrimination Act has existing provisions in relation to harassment, it is limited in its application and threshold. Since April 2000 there has not been a single successful case involving a claim of harassment in relation to disability under the Disability Discrimination Act. In relation to vilification on the basis of disability, the Disability Discrimination Act offers no protection to people with disability.
I now turn to the contents of the bill. Schedule 1 [5] to the bill inserts a new provision in the Anti‑Discrimination Act 1977 making it unlawful to vilify someone or a group of people on the basis of disability, specifically, to incite hatred towards, serious contempt for, or serious ridicule of a person on the grounds of disability. Schedule 1 [6] inserts an additional offensive behaviour provision in the Anti‑Discrimination Act to make it unlawful for a person to offend, insult, humiliate or intimidate another person or a group of people on the basis of race, religion, disability, sexual orientation, gender identity, or intersex or HIV/AIDS status.
The prohibition of offensive behaviour goes further than existing vilification protections and models section 18C of the Federal Racial Discrimination Act 1975, which makes it unlawful for someone to do an act that is reasonably likely to offend, insult, humiliate or intimidate someone because of their race or ethnicity. The inclusion was an explicit ask of stakeholders in the disability sector, and follows recommendation 4.29 of the disability royal commission report, which calls for the Disability Discrimination Act to be amended by inserting such a provision. Introducing a new offensive behaviour provision alongside existing vilification provisions will ensure that all forms of abuse, victimisation and offensive behaviour, regardless of the extent or severity, are captured within our laws.
Schedule 2 [2] to the bill extends existing anti-vilification provisions in section 93Z of the Crimes Act 1900 by inserting disability as a protected characteristic. Schedule 2 [3] amends the introductory wording in section 93Z (1) to capture those who experience vilification on the basis of more than one protected characteristic. The purpose of the amendment is to expressly capture instances when a person or group of people with intersecting characteristics—for example, a person with disability who is also a First Nations person—experiences vilification on a combination of multiple grounds at the same time. The definition of disability in schedule 1 [1] and schedule 2 [5] to the bill replaces the existing definition of disability in the Anti-Discrimination Act and Crimes Act to modernise them with broader definitions of disability to properly encompass a more modern understanding of disability by including past, present and presumed future disability; carers of a person with disability; neurodiversity; and the omission of some outdated language in current legislative definitions.
Modernising the definition of disability is critical in ensuring no‑one is excluded from protection from discrimination, offensive behaviour and vilification. As is currently understood in relation to the application of existing vilification protections for protected characteristics, examples of disability vilification in a public place could include offensive comments made in a workplace or educational setting; display of offensive material in a public place; unsolicited email distribution lists; offensive comments or material publicly posted on social media or expressed in radio or TV interviews; the wearing or displaying of offensive clothes, signs or flags in public; or yelling offensive comments while driving past a person.
Disability vilification can occur in different ways to other forms of vilification and may be less obvious to most people because of how ubiquitous ableism and disablism are in our society, from the media we consume to the language we use and the attitudes and behaviours taught to our children from a young age at school and in our homes. We have an incredibly long way to go to build a society that ensures meaningful inclusion and access for all people with disability, and we must begin with the reforms we already know we need. Every day that our governments delay action pushes us further behind in achieving this.
We must strive to go further than simply protecting people with disability from discrimination, harassment and vilification in our laws and introduce a positive duty to eliminate discrimination within our anti‑discrimination laws. That was a key recommendation of the disability royal commission and is a legislative provision in place in several jurisdictions across Australia already. By requiring all duty holders to take reasonable and proportionate measures to not only accommodate people with disability in society but also eliminate all forms of discrimination, including harassment and vilification, we can finally move forward in ensuring the human rights of people with disability are fully realised in accordance with our obligations under the United Nations Convention on the Rights of Persons with Disabilities. To truly create an inclusive society where people with disability are valued, we must untangle the deeply rooted ableism that has created a web of systemic barriers and move from a reactive model to an active model of prevention and elimination of such barriers.
I thank everyone who shared their stories, expertise and advice throughout the process, including Family Advocacy, First Peoples Disability Network, the Autistic Self Advocacy Network of Australia and New Zealand, Australian Autism Alliance, Council for Intellectual Disability, Square Peg Round Whole and, most importantly, those with lived experience and their families who shared their experiences with my office. I also thank, as always, the Parliamentary Counsel's Office for its work in drafting the bill and my team, without whom I could do almost nothing. We cannot erase the pain and suffering of those who have experienced abuse, violence, victimisation and harassment on the basis of their disability, or the pain of those who have lost loved ones from that, but we can act right now by legislating to ensure that, moving forward, people with disability are legally protected from all forms of abuse and harassment, including offensive behaviour and vilification. I commend the bill to the House.