Australia failing to enshrine rights of people with disability in law

The federal government could do more to legislate greater rights for Australians with disability, a legal assessment of the nation’s constitutional obligations has revealed.

The ‘Persons with Disability and the Australian Constitution‘ report investigated the extent and use of the Commonwealth’s legislative powers that enable it to provide support for and protect the rights of people with disability.

It has found three distinct periods of time in which the Commonwealth positively moved to support its citizens with disability.

The first covered the drafting of the Constitution to the Second World War, the second period commenced with the arrival of the welfare state in Australia after the Second World War, while the third period, in the 1970s and 80s, witnessed increased support for people with disability and legislation to protect their rights.

Authored by academics from the University of Adelaide and University of Oxford, the report has been published on the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability website on 2 October 2020.

The report says the Commonwealth’s role in providing support to persons with disability has also relied heavily on cooperation between the Commonwealth and the states, often providing funding to be used on specific programs to support persons with disability, thus overcoming any legislative barriers from doing so directly.

Associate Professor Matthew Stubbs from the Adelaide Law School, Dr Adam Webster, from the University of Oxford and Professor John Williams, also from the University of Adelaide, say more can be done.

“The Commonwealth has assumed greater prominence in the lives of persons with disability, notwithstanding the fact that its enumerated powers do not include any express legislative power with respect to persons with disability,” they say.

“There remains considerable constitutional scope for the Commonwealth to further expand its support for persons with disability and its legislative protection of their rights.

“We conclude that there is considerable constitutional scope for the Australian government to expand its existing support for and protection of the rights of persons with disability.”

The authors say while there is a possibility that some constitutional issues may arise in the case of legislation imposing extensive obligations on states, “the use of a range of Commonwealth legislative powers appears to us to leave the door open for extended Commonwealth regulation, if it is thought desirable in the future”.

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