Disability and human rights in Australia

Australia has a number of rights-based services and policies for people with disabilities across interrelated policy areas, led by the Disability Discrimination Act, 1992 (DDA), which protects people with disabilities from discrimination. Although the DDA has contributed to significant changes in areas of transport, access to buildings, and telecommunications, it is considered not to have achieved its intended impact in the area of employment (HREOC 2003), and there remains a gap between the system of rights and rights in practice. Australia has also ratified the United Nations CRPD (United Nations 2006), an international treaty intended to promote and protect the rights of people with disabilities in nations that sign and/or ratify the treaty. Because it has ratified the CRPD, Australia has specific legal obligations under international law, such as modifying or abolishing existing laws, regulations, customs and practices that discriminate against people with disabilities (Article 4, CRPD).

The CRPD is important because it demands change not only through shifts in attitude towards disability, but also through implementation of comprehensive and effective legislation (Lord & Stein 2008; Melish & Perlin 2007). However legislation alone is not enough to ensure the rights of people with disabilities (Sabatello 2005), particularly when some rights are progressive rather than immediate and are therefore subject to national policy constraints (Kayess & French 2008). Although policy constraints on the realization of rights are inevitable, the implementation of rights in practice must account for such policy constraints (Fisher, Robinson & Parker Harris 2013). Additional structural and attitudinal barriers also need to be addressed, and this research addresses that question within Australia.

Neoliberal policy reform in Australia

Similar to other OECD countries, neoliberalism has influenced the social policy trajectory in Australia. Participation in the labor market as a pathway to full and equal citizenship has always been a significant feature of Australian social policy (McDonald & Chenoweth 2006); however under the conservative Howard government (1996-2007), welfare reform culminated with the 2005 Welfare to Work Act, cementing the central role of paid labor in Australia. The conservative government aimed for two core neoliberal strategies in their reforms: (a) reducing welfare dependency by raising employment participation levels; and (b) slowing the number of people receiving income support benefits by restricting eligibility (Bill et al 2004). These policy shifts are consistent with neoliberal trends in social policy. Neoliberalism seeks to reduce the role of government through policies that maximize individuals' responsibility by meeting their own needs through their labor market participation. Such policies reflect an ideological preference for private control over governmental expenditures that developed in response to economic instability and various social and political challenges to governmental authority starting in the 1960s and 70s (Centeno & Cohen 2012). Support for neoliberal policy grew with a period of reduced taxation and tremendous capital growth for many wealthier middle and upper class citizens. Many poorer citizens were not able to benefits from this period of growth but often supported neoliberal policy reform based on rhetoric that espouses citizens can achieve greater independence and economic self-sufficiency by incentivizing paid labor (Harvey 2006). This support can partly be explained by power differentials between the state and economically marginalized citizens that is exacerbated in this context where discourses of economic stability and individual responsibility are painted as binary to redistribution and welfare expenditures (Giddens 1998). This rhetoric can be particularly stigmatizing for many people with disabilities who are unable to participate in paid labor without sufficient supplementary economic support.

Even Australia's well-developed system of rights-based employment protections is inadequate to address labor market marginalization for people with disabilities in this context. In response to neoliberal policy changes, various non-governmental and social agencies that assist people in obtaining paid labor have experienced substantial structural changes that challenge their ability to provide assistance. Soldatic and Chapman (2010) argue that in the workfare system, service providers and contractors have a heightened role to play in training people to reach their full capabilities that individualized income supports cannot adequately address. However, non-governmental service providers often compete for scarce resources and service systems are restructured to reflect profit-driven models within the neoliberal agenda (Harvey 2006). These trends directly impact many people with disabilities who utilize various employment services that increasingly must respond to private-sector employer demands. For example, complaints documented in a recent Human Rights Commission (2012) testimony recount how various recruitment agencies are reluctant to support any but those relatively certain to maintain employment and guarantee financial return. This is problematic for many people with disabilities who require supplementary income or significant supports throughout the work day. The changing structure of disability employment systems is indicative of the problematic shifts towards reduced government support for welfare services in the context of neoliberalism. There is a limited pool of research, however, that analyses the repercussions of such changes and how they specifically impact the lives of people with disabilities. Furthermore, the impact of neoliberalism on the design of disability policies and the effect on people with disabilities' transitions from welfare to work has not been adequately examined in the context of disability rights.

Disability rights in a neoliberal context

While the implementation of the DDA and other policy/legislative reforms have provided incremental steps to address the marginalization of people with disabilities in the labor market in Australia, the unemployment rate of people with disabilities remains high and people with disabilities continue to experiences significant barriers to participation in many life domains. Recent governmental reports document deficiencies within the emerging policy framework that diminish the efficacy of rights-based policy. In the welfare-to-work system, people with disabilities are required to go through a job capacity assessment (JCA) to determine eligibility for various supplementary payment schemes. A 2008 report by the Commonwealth Ombudsman details complaints of JCA assessors under qualified to properly assess or diagnosis the varying support needs of many people with disabilities. For example, the report documents complaints of assessors disregarding previous medical assessments and relying on their own opinion, even when it is outside their area of expertise. Inefficient program implementation compounded by inadequate economic support mark a significant barrier to ensuring adequate employment supports for people with disabilities in the welfare-to-work system. Jointly, the problems of burdensome medical evaluation and insufficient benefits provide some insight into the core structural problems people with disabilities face in the policy context.

Such problems have also been noted elsewhere. In the British context, Grover and Piggott (2010) argue that the private sector has been given greater control over various disability training schemes in lieu of government support necessary for structural changes within the political economic system. Similarly, Owen and Parker Harris (2012) note the limited employment choices that people with disabilities have under neoliberal welfare reforms in the UK, and suggest the need for addressing structural barriers. Additional scholarship explains how workfare policy impacts power levels between people with disabilities and medical professionals who often serve as "gatekeepers" in determining eligibility for benefits (i.e. Roulstone & Barnes 2005). Examiners can make treatment demands that people with disabilities must comply with in order to receive benefits, even when they are contrary to personal goals or beliefs. Theoretical analysis of workfare and rights is sparse in the US context, partly because the American policy and services framework often protects segregated vocational services that impede open labor market participation for people with disabilities (Parker Harris, Owen, Jones & Caldwell 2013). Specific to Australia, scholarship details the moral impetus of such policy where people who cannot work are often seen as deficient or "disgusting" (Soldatic & Pini 2009). Comparative research provides further evidence that stigmatic perceptions of disability in workfare systems and various structural barriers to the provision of rights are shared concerns across liberal nations (Grover & Soldatic 2012; Parker Harris, Owen, & Gould 2012).

An important gap in much of the liberal scholarship on workfare, neoliberalism and rights, is the lived experiences of people with disabilities and the perceptions and experiences of other stakeholders involved in policy changes. Recent scholarship by Soldatic and Meekosha (2012) begins to address this gap by using case studies of women with disabilities to analyze social and political detriments related to normative perceptions of gender and class within workfare programs. Further research in this area is essential to broaden analysis and generate evidence about the destructive impact workfare policy has on rights and inclusion for people with disabilities in the context of neoliberalism. Australia is a exemplary case study to explore the impact of neoliberal policy change on people with disabilities, with its policy emphasis on active employment programs, ratification of the CRPD, and a focus on increasing the employment rate of people with disabilities.

Data collection and analysis1

This research used multiple methods and incorporated data from multiple perspectives in order to address the research questions. These include: critical literature review; focus groups with working age people with disabilities; and face-to-face interviews with key stakeholders.2 Mangen (1999) argues that using multiple methods improves research design, and Mertens (2005) notes that multiple methods and multiple perspectives help to triangulate data. Triangulation helps to build consistency and a deeper understanding when some data sources are inconsistent (Patton 1990). The qualitative approaches were used to develop rich data descriptions and to understand personal experiences of the policy processes. The literature review was used to provide context for the qualitative data and to help address the limitations of the participant samples, as described below.

Fieldwork3 was conducted in Sydney, Australia during July and August 2010. Three focus groups (n=24) were conducted with people who receive disability benefits and/or participate in employment services with the goal of entering the labor market. The participants were selected by advertising on disability email listserves, posting flyers around Sydney, and working with local service agencies. The people with disabilities involved in this research are highly engaged with employment services and motivated to find employment, which may distinguish them from the larger population of people eligible for these services. Focus groups were used for this population because the research questions require in-depth data on complex issues that cannot be adequately captured using quantitative techniques (O'Day & Killeen 2002). A strength of focus groups is that they allow people who have similar experiences or characteristics (they have all been impacted by welfare to work) to have an open discussion about their experiences and perceptions; focus groups have been shown to be effective for both marginalized populations and social policy research in general (Wilkinson 1998). Appendix A is a detailed description of the focus group participants.

The majority of the focus group participants identified as Anglo-Australian and all but three had at least a High School Certificate (Year 12). Of the 24 participants, 15 were men and 9 were women, with an age range of 19 to 60 years. The average age was 31.5 years, which is slightly skewed towards young people because one of the focus groups consisted of young people aged 18 to 20 who participated in a program that emphasized the transition from education to work. The participants had a variety of disabilities. Most people were currently enrolled in an employment program, which means that the participants were seeking support from an employment provider. All but one of these programs was specific to disability. All of the participants were receiving income support, but most chose not to disclose the type and level of support. The sample does not include the perspectives of people who are eligible for services but are not seeking work through an employment provider.

In addition, 10 stakeholders were interviewed about their views on disability welfare reform. The participants were selected with the assistance of the local researcher, making use of existing connections with relevant agencies. By targeting specific departments related to people with disabilities and employment types, the research obtained a range of perspectives. Interviews were used in place of focus groups because the participants were more heterogeneous, so focus groups were not ideal (Wilkinson 1998). Appendix B is a detailed description of the interview participants.

The stakeholders included policymakers in government (3); staff in two employment service providers (2); a service provider from a peak organization (1, a national umbrella organization that oversees state and local offices of the organization); upper-level staff at a peak organization that handles complaints from employment service users (3); and an employment recruiter from the human resources office of a large law firm (1). Both of the employment service providers (an agency that contracts with the federal government to provide employment-related services, including job-search assistance and training) were in disability-specific employment services (they did not work with jobseekers without disabilities). This means that the perspectives of mainstream service providers were not included (such as a representative from Job Services Australia). In addition, only one employer was included, which leaves the employer perspective underdeveloped. Attempts to recruit these stakeholders were unsuccessful.

Analysis was conducted using qualitative software (ATLAS.ti). Data from the focus groups and interviews were coded using 'Indexed Coding,' which requires a set of well-defined codes (either from external sources or from quick readings of the transcripts) that are applied to segments of text in the transcripts (Morgan 2005). As Miles and Huberman (1994) suggest, the research questions were also used to help develop the initial codes. Following coding, which used 42 themes for the focus groups and 25 themes for the interviews, the research team combined and refined the codes into five 'megadomains' (Greenfield et al 2010) for both the focus groups and interviews (see Appendices C and D for the coding schemes). Analysis revealed overlap between the megadomains that are relevant to current policy debates in Australia. These are presented below as tensions between rights and responsibilities of citizens and government and disconnect between policy discourse and policy practice.

Rights and responsibilities of citizens and government

Focus groups

The majority of the people with disabilities were comfortable with the idea of welfare to work, if the policy was implemented in conjunction with necessary support. People with disabilities thought that some of the changes to employment and disability income support policies were somewhat effective in increasing their opportunities for participation. The strategies they found to be effective in helping them transition from welfare to work were structural changes and supports, such as an increased range of support, a wider range of available jobs and more attention to how work impacts financial benefits. These supports include equipment and technology, courses on benefits and managing income, and one-on-one employment assistance. One participant saw great promise regarding one-on-one assistance: 'I get an hour a fortnight with my case manager where he's suppose to help me look on the internet for jobs and another hour which is reverse marketing where he rings companies up and sells me' (Leo, male, age 42, OCD).

The main suggestion for how government could assist people with disabilities into employment was streamlining case management. The suggestions spanned the process of finding employment, including application and completion of forms for services; job training and job skills to help them be more prepared in the labor market; and greater public awareness and media campaigns, where current employers could be used to discuss the benefits of employing people with disabilities. They also noted the financial disincentives to employment from pay differences and extra costs of employment for people with disabilities: 'Maybe if we were getting paid properly we wouldn't need to be on the [disability] pension' (Chris, male, age withheld, visual disability).

In discussing rights, people with disabilities were aware of the CRPD, believed they had a reasonable understanding of its purpose, and knew that Australia was a signatory. They generally agreed that signing the Convention was important so that the Australian government promoted human rights of people with disabilities, but their discussions turned quickly to the practical application of the Convention. They wondered what effect the CRPD would have beyond a symbolic gesture, centered on the 'public relations' of government and business, rather than implementing change at the grassroots level: 'It's great that Australia signed it, but what kinds of policies do you have to put in place to have these rights in place?' (Frank, male, age 48, physical disability). One person with a disability emphasized that people really have to fight for their rights in Australia: 'Everything has a political agenda behind it. In terms of human rights, my brief encounter is that what we have in Australia, all rights and Acts and things come about by people kicking and screaming' (Chris, male, age withheld, visual disability). For example, they said the shortage of support, such as equipment, technology and accessible transport, which is critical to implementing welfare to work policy reform, is a practical barrier to their right to employment. 'I just started this IT course [my employment training] and it's taken them so long to get simple software, and been totally frustrating. It's put me behind. They're [government] not doing much to address the barriers' (Erin, female, age 28, visual disability). Another person was happy that her provider offered the Dictaphone she needed, but thought this was rare: 'I suppose at another you would have to ask' (Barb, female, age 60, visual disability).

Interviews

Policymakers also spoke about the importance of having adequate supports in place prior to initiating work requirements for people with disabilities. One policy official felt it was acceptable for people with disabilities to be held to the same standards as people without disabilities, but pointed out that, 'sometimes the person with a disability has needs that must be attended to before holding them to the same level of rights and responsibilities' (Dana, Policymaker). When policymakers spoke about the benefits of the new policy reforms, they framed the benefits in terms of personal responsibilities and individual characteristics by noting how 'outcome rates increased because people were highly motivated to work' (Carly, Policymaker). Another policy official agreed with the importance of outcomes and pointed out that reforms 'are much more heavily weighted on getting job outcomes where [the programs] are really designed for what we want them to do — get a job' (Emily, Policymaker). The policymakers generally agreed that 'rights come with responsibilities' and in their experience, many people with disabilities want to take on the responsibilities as long as they can exercise their rights. An employer noted:

I think it's the government's responsibility to make sure people want to work and it's an even playing field, but I don't think people are owed a living. If people have a disability, they should be able to apply for a job on even footing with an able bodied person (Andy, Employer).

The stakeholders were also familiar with the CRPD, and spoke about how they drew on international disability rights to frame policies at the national level, and in specific employment programs. The policymakers in particular spoke positively about applying the CRPD principles to assessing existing programs and to increasing the employment of people with specific types of disabilities. One policymaker noted:

Unfortunately in Australia there has been a relatively low percentage of people with disabilities in employment in the public sector, and that's something the government is concerned about. My department [withheld] has been employing people with intellectual disabilities into training to capture the essence of the Convention (Bob, Policymaker).

Summary

The research reinforced that in practice, a government's commitment to international rights is useful only to the extent that it effects change at national, state and local policy implementation levels. People with disabilities, government and other stakeholders were supportive of the Australian government signing human rights instruments because the concepts in the CRPD articulate the conditions essential for parity of participation of people with disabilities. Although the CRPD allows progressive realization of rights, stakeholders noted that recent reforms encouraged outcomes and were concerned about how rights are translated into practice. These findings underscored the broader tensions between neoliberal expectations and human rights. The disconnect between mandated responsibility to participate in the labor market, without supporting accommodations and equality, compromised the implementation of the reform policies. Individuals could not act on responsibilities in the labor market without the government taking concurrent steps to address discrimination, access, and equal treatment.

Policy Discourse and Policy Practice

Focus groups

Only a few people with disabilities in this research could describe what the welfare to work reforms entailed, despite these policies having a direct impact on their lives. They noted that while they understood that their DSP would be affected if they went back to work, they had little understanding of exactly how. One person who felt informed, felt that most people with disabilities have no incentive to work more than 15 hours because they would lose their benefits, concession card and eligibility to other supports (Erin, female, age 28, visual disability). Another person noted that requiring people to work less than 15 hours allowed them to pay less taxes, and get more benefits and be less productive, which made him ask, 'How is this good for the economy?' (Frank, male, age 48, physical disability). He said that he tried to ask people in government this but could not get an answer.

People with disabilities did know about employment service providers, however, many of them commented on the difficulty of obtaining information about the providers. In particular, they said Centrelink (the federal governmental agency that refers clients to providers and administers benefits, employment services, and other social services) was 'difficult to work with', because the information provided by Centrelink and the position of employment providers was inconsistent. Although Centrelink did a good job of sharing accessible information, in practice, that did not include effective referrals to employment service programs. One person with a disability praised Centrelink for the information she received, and found that they were quick to offer alternative formats for the information that is sent out. She frequently called their number and appreciated that 'there is a disability services line so we get specialized people helping us out' (Anne, female, age 26, physical/visual disability). However, they were less helpful at getting her into an employment service program, and she had to find one herself. One woman reported feeling like she was constantly 'getting the run around' and it left her 'in tears' because Centrelink could not find her an employment program (Deb, female, age 48, visual disability). She eventually found an employment program through a friend. One person suggested Centrelink was not adequately focused on the people they serve: 'I think the focus should be them trying to serve us rather than the government' (Gus, male, age 26, mental health).

Another person with a disability noted how they experienced difficulty being referred to a provider. The person in charge of assessment kept asking why he wanted to be in a program, and he told her he really wanted to work: 'It came across that they basically didn't want another person to register with unemployment, for statistical reasons' (Chris, male, age withheld, visual disability). While removing the cap on the number of places available to people with disabilities was an important step in increasing the availability of employment programs for people with disabilities, people with disabilities noted that they still have to find the right employment provider. Their experience of the intake process was that it focused on fitting their goals to the capacity of the providers rather than facilitating their right to work. For instance, Chris was repeatedly sent to one organization because of their focus on visual impairments and had to suggest another organization himself to get out of the loop between Centrelink and that organization.

Interviews

The welfare reforms brought new funding structures, which the disability stakeholders were concerned about. One policymaker discussed how the new funding strategy is heavily weighted towards 'outcome payments' (Dana, Policymaker). This approach embodies neoliberal goals, as policy emphasis on job outcomes (i.e. obtaining any job for those most easily placed as quickly as possible), is a disincentive to providers to focus on the initial support necessary to work towards the outcomes. Service providers are expected to provide more initial services, but only receive funding after reaching outcome benchmarks. Another policymaker reported that he had informally heard about employment providers paying less attention to the people who were not easy to place: 'I don't have data on it, but I've heard about it' (Bob, policymaker). This process is known as 'creaming', where service providers may prefer to work with people with easily achievable employment outcomes.

The stakeholders also noted the importance of effective communication and accessible information. Much of the practices of information transferral falls to individual providers as a centralized source of information: 'For people with disabilities themselves, they use the providers as a communication channel' (Bob, policymaker). Bob also stressed the availability of information on government websites and the use of targeted mailings to jobseekers and other stakeholders. Providers often found this role frustrating when Centrelink makes a referral that is difficult for a person to understand:

We get some ridiculous referrals and I think they're really unfair to the person. I'll give you an example of a bad referral - a woman who is 64, never worked in her life, can't speak English, has crippling arthritis and just lost her husband. Because she's asked for financial support because her husband died, she's now put on obligations. I think that's unfair to us, to her. That's not really what we should be doing. It's a difficult situation with the way the system plays out and that's the negative part. (Irene, Peak Body Representative)

Policy reforms also impact other practices of employment service providers. They noted that the new funding structures determined how and to what level they provided services. The new policies substantially increased the administrative load of service providers, which meant that service providers had less time to spend with individuals. One person, who represented a group of employment service providers, said that administrative time was up to 40 percent on the new required forms. 'What you think you're going to do at the beginning of the day and what you do by the end of the day can be very different and in the system, you can't change it. The IT system is determining service delivery, not collecting the data behind it'(Irene, Peak Body Representative). The forms are intended to collect information about what service providers do for their clients and how they spend their time. It required that people record what they were going to do at the beginning of the day rather than offering the flexibility to incorporate things that come up during the day.

Summary

The lack of effective information and communication illustrated both tensions found in the research — the disconnect between policy and practice and the tension between neoliberalism and rights. Implementation of policies to achieve welfare to work requires communication about information to people with disabilities about how to exercise those rights. Their experience with policy implementation was an absence of this critical step in implementation. Additionally, the administrative and funding structures were in conflict with promoting people's access to effective employment support. By focusing on neoliberal assumptions about competition, efficiency, and outcomes to drive service effectiveness, the policy reforms lost focus on rights, equal access and effectiveness for the individuals.