The Human Rights Perspective

On this page you will find information to provide a human rights analysis of the current situation for older people with disability.

Background

In 2011, the Productivity Commission released an inquiry report that provided a number of recommendations to the Australian Government. These recommendations were intended to help shape a scheme of lifetime care and support for people with disability – a National Disability Insurance Scheme.

The terms of reference for the inquiry originally indicated that the proposed scheme was ‘intended to cover people with disability not acquired as part of the natural process of ageing.’ And while the Productivity Commission put forward an economic rationale for separating out loss of function that is caused by the natural aging process from loss of function that is caused by permanent and severe disability, the current arrangements for people over 65 years of age do not allow for this line to be clearly drawn.

Under the NDIS Act, it is not only those people who acquire disability after the age of 65 that are prevented from accessing the NDIS – but also those people with disability who are aged 65 years or older when the NDIS rolls out in their area. Under these arrangements, many people who were born with, or acquired a permanent disability early on in life are being forced into the aged care system – a system that is designed around very different principles to those which underpin the NDIS.

Australia’s Human Rights Obligations

The Australian Government is a signatory to the United Nations Convention on the Rights of Persons with Disabilities and is therefore bound by the obligations that it establishes. The steps to be taken to implement the Convention at a national level have been articulated in the National Disability Strategy 2010-2020, which has been endorsed by the Council of Australian Governments. It was this strategy that first underpinned the introduction of a National scheme of lifetime care and support for people with disability. The Strategy sets out to achieve the following two outcomes in this regard:

  1. A disability support system which is responsive to the particular needs and circumstances of people with complex and high needs for support.
  2. Personal and community support services are available to meet the needs of people with disability, their families and carers.

In order for Australia to be considered to be meeting its international human rights obligations under the Convention on the Rights of Persons with Disabilities, there must be equality of support for all people with disability, regardless of factors associated with age.

If older people with disability were receiving an appropriate level of support through My Aged Care, the age cut-off under the NDIS would not be so problematic. But the current state of affairs continues to compromise the health, dignity and independence of some of Australia’s most vulnerable people.

Views expressed by the Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights has been established to analyse new legislative instruments for compatibility with the seven international human rights instruments that Australia has signed and ratified – including the Convention on the Rights of Persons with Disabilities.

The Parliamentary Joint Committee on Human Rights has expressed concern with the age 65 cut-off under the NDIS from the outset. In its report on the NDIS Bill 2012, the Committee noted the following in relation to the age 65 cut-off:

This assumes that the aged care system does or will deliver all the forms of assistance and support required, and is organised in accordance with the principles and operates in compliance with the obligations set out in the CRPD and the NDIS. While the incidence of disability may increase with age, the assumption that a person who has lived with disability for many years can transition without difficulty to a different system that may be organised around different principles deserves further examination.

The age 65 cut-off under the NDIS clearly has a discriminatory element to it. Under previous arrangements, individuals would have had a clear avenue to pursue a complaint alleging discrimination under the Age Discrimination Act 2004. But the NDIS Legislation Amendment Bill 2013 established a general exemption from the provisions of the Age Discrimination Act in relation to any decision that is made regarding eligibility for the NDIS.

In its report on the NDIS Legislation Amendment Bill 2013, the Parliamentary Joint Committee on Human Rights reiterated many of its previous concerns and questioned the appropriateness of a general exemption from the Age Discrimination Act. Go here to read the Committee’s comments

One of the Committee’s recommendations referred to the need to review the age 65 cut-off under the NDIS, in addition to the general exemption from the Age Discrimination Act, as part of the two-year review of the NDIS Act.

Conclusion

Submissions to the two-year review of the NDIS Act closed on September 2015. When the Department of Social Services was recently questioned about its revision of the age 65 cut-off as part of this review, it was stated that this fell outside the terms of reference of the review and as such, had not been explored. This means that the Government chose not to Act on the advice that had previously been provided by the Parliamentary Joint Committee on Human Rights and to-date, has still not committed to any plan to review the appropriateness or effectiveness of the current arrangements for people with disability who are over the age of 65.

The NDIS is under constant scrutiny to ensure that it is delivering positive outcomes for scheme participants. Older people with disability deserve this same attention to detail and the government already knows that things aren’t working; as a number of people with disability and disability advocacy organisations have previously brought the aforementioned issues to their attention. By continuing to focus purely on the needs of people with disability who are under the age of 65 and failing to act on the recommendations of the Parliamentary Joint Committee on Human Rights, the Australian Government is failing to meet its obligations to older people with disability under the Convention on the Rights of Persons with Disabilities.

Further Reading

You can access the 2011 inquiry report that was prepared by the Productivity Commission here: 2011 inquiry report

Go here to read the Convention on the Rights of Persons with Disabilities

You can access a copy of the National Disability Strategy 2010-2020 here: National Disability Strategy

You can learn more about the Parliamentary Joint Committee on Human Rights here: Joint Committee on Human Rights

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