Last updated 6 December 2016
In seeking to protect the legal rights of a person with a disability, it is important to consider the range of options available and decide which is most likely to give the desired result. Non-legal remedies can be just as effective as legal remedies.
In seeking to have rights recognised and protected, it can be important for a person with a disability to have an advocate to act on their behalf. An advocate is someone whose job it is to speak, act or write on behalf of the particular person in order to promote, protect and defend the rights of that person. The advocate needs to have a clear loyalty and accountability to the person with a disability.
Advocacy can be either formal or informal. A number of different types of advocacy exist within Australia. They are:
- individual advocacy—the process of standing up for the rights of someone who is being treated unfairly
- citizen advocacy—a form of individual advocacy where an individual volunteer is matched with a person whose disability means that they cannot get their needs and rights addressed on their own
- self advocacy—people who have a disability advocate for themselves as individuals or in groups
- family/parent advocacy—families or parents may adopt an advocacy stance on behalf of their family members or collectively for other people who have a disability
- legal advocacy—a specialist advocacy assistance, as well as advocacy by solicitors and barristers
- systems advocacy—advocacy groups focus on system change and broad societal changes. Systems advocacy is often a component of family and legal advocacy.
Some rights issues or complaints may be able to be resolved through mediation if both parties are willing to discuss the matter and work toward a solution. However, sometimes the power imbalance between parties may mean that mediation is unsuitable. This power imbalance can be offset if the person with a disability has a support person present.
Negotiation may help to prevent the need for formal and costly court or tribunal proceedings. However, people with a disability may feel powerless and intimidated when trying to negotiate. A person with a disability should ask family, friends, advocates and, if possible, a lawyer to assist and support them. While this is not their legal right, it is good practice and in line with procedural fairness principles to allow a person with a disability to bring a support person along to meetings. If this is refused, written reasons for the refusal should be requested.
Complaints to ministers
Complaints about government bodies or other more general problems (e.g. lack of accessible transport) can be made to the local member of parliament. A complaint can also be made to the state and Commonwealth government ministers responsible for the area in which the problem has arisen. Local members and ministers are required to respond to complaints they receive.
The Queensland Ombudsman can investigate the decisions and actions of state government departments, prescribed and statutory authorities, public universities and local councils. Before making a complaint to the Ombudsman, the person with a complaint must first try to resolve the matter with the agency concerned using their internal complaints mechanism.
The Commonwealth Ombudsman can investigate complaints about actions and decisions of Australian Government agencies to see if they are wrong, unjust, unlawful, discriminatory or just plain unfair. The Ombudsman also seeks remedies for those affected by administrative deficiency, and acts to improve public administration generally. For more information see the chapter on Complaints to the Ombudsman.
Often, legal advice will be useful prior to making a complaint to either the Human Rights or Anti-Discrimination Commission. Legal representation is also useful during the conciliation process and when participating in proceedings before the Queensland Civil and Administrative Tribunal or the Federal Court. For further information see the chapter on Discrimination and Human Rights.