Introduction by Croakey: The peak health organisation LGBTIQ+ Health Australia has cautioned politicians, media and others to take care when commenting on the Federal Government’s Religious Discrimination Bill because of the potential for harm to LGBTIQ+ people and communities.
The organisation opposes the bill, arguing in its submission that: “Enshrining discrimination and further cementing access barriers to healthcare in legislation will have the unintentional and undesirable consequence of deterring government efforts related to achieving equitable healthcare outcomes for all Australians.”
This bill is just one example of the potential for law to harm health and wellbeing. But the law can also provide effective solutions for many health problems, writes Dr Tessa Boyd-Caine, CEO of Health Justice Australia, which is hosting an online event next week on legal remedies to health inequity.
Tessa Boyd-Caine writes:
Many of the problems that shape people’s daily experiences of health inequities have legal solutions. For tenants in public, social and rental housing, for example, the presence of mould and the impact of inadequate heating in winter or cooling in summer are all experiences that can drive health inequities.
While out of residents’ hands, maintenance and other actions to address these problems are often enshrined in property owners’ legal obligations. As another example, people have rights to work and to access education, healthcare and other services free from stigma and discrimination.
Legal processes provide direct pathways for acting when those rights are denied or infringed. As Australia moves through the COVID-19 pandemic, the law has been a powerful tool to enact public health measures, and legal assistance services have been part of the frontline of services responding to the rising health, legal and social needs of people impacted by the pandemic.
But does the law provide avenues for addressing the structures that advantage some and disadvantage others in our experience of health?
In a recent piece in the Millbank Quarterly, ‘Advancing Action on Health Equity Through a Sociolegal Model of Health’, my co-authors and I argue that law and justice institutions can be used to reduce health inequities.
We argue that the law and legal systems are valuable but poorly understood and substantially underutilised tools within the field of public health that have potential to address unfair or unjust societal conditions underpinning health inequities.
Beyond the confines of health law, we suggest, health actors (across research, policy and practice) can use the law strategically to pursue health equity by addressing governance challenges, employing a broader rights-based discourse in the public health policy process, and collaborating with the access to justice movement.
If legal assistance only operated at the level of individual clients, then it might have limited value in tackling social structures. This is certainly one element of how the law operates. When the experience of poverty is shaped by inadequate income or rising levels of debt, legal assistance can help someone challenge unfair work practices, claim social security entitlements or negotiate payment plans.
But legal assistance can be equally concerned with collective impact, reflected in the efforts of legal assistance services to hold financial institutions to account for failing to follow their own policies when customers fall into hardship.
On Robodebt
The example of Robodebt, the Centrelink-run compliance program targeting people reliant on income support, is one of Australia’s most significant recent examples of how legal assistance can challenge powerful and inequitable structures.
Robodebt averaged the incomes of social security recipients, without proper evidence, then used that automated assessment to massively increase the number of debts that could be raised to the Government on the basis of alleged overpayments of income support. Over three years, Robodebt caused immense harm to thousands and saw legal assistance and other services overrun with calls for help. People experiencing mental health issues or who spoke English as a second language were hit particularly hard.
Robodebt was an egregious demonstration of state power over a population (people reliant on income support) already recognised as being more likely to experience health inequities than people on higher incomes. Despite a growing media spotlight and multiple inquiries by the Government’s political opponents, it was ultimately legal action that halted this harmful program, when Robodebt was found to be unlawful.
In an online event next week, two of the world’s leading thinkers on the social determinants of health will come together in a conversation about legal remedies to health inequity. Sir Michael Marmot is Advisor to the World Health Organization’s (WHO) Director-General on the social determinants of health and led the 2008 WHO Commission on Social Determinants. Professor Sharon Friel is an ARC Laureate Fellow and Professor of Health Equity and was the head of the Scientific Secretariat for the 2008 WHO Commission.
In the inaugural Health Justice Conversation, Sir Marmot and Professor Friel will explore the contested place of law within the Commission’s work, and what justice institutions offer us in the socioeconomic and political contexts that shape the social determinants of health.
Election context
These questions carry immense importance in the lead up to the next Federal election.
One clear example of the direct relationship between law and health equity is the Government’s highly contested draft Religious Discrimination Bill, a commitment it made at the last election. Advocates warn that the Bill, which was supposed to prohibit discrimination on the basis of religious belief or activity in certain areas of public life, has instead been drafted to undermine inclusive workplaces, schools and access to services like healthcare without judgement.
The potential collective impact on the hard-fought rights of the LGBTIQ+ community, women, people with disability and even people of faith demonstrates the critical role the law can play in shaping structures to drive health inequities or protect against them.
COVID lessons
Those charged with implementing our laws and public policies need to understand structural drivers such as the social determinants of health, and the levers they can pull to produce more equitable outcomes.
This was precisely the lesson of Australia’s initial responses to the COVID-19 pandemic when, in 2020, the Government increased the JobSeeker income support payment, lifting the rate of income support for people who were out of paid work above the poverty line. But Government seems to have learned nothing from this successful measure, which has now been abandoned.
Elections are major opportunities to secure political commitments for policies that improve health equity and to reject policies that enshrine disadvantage and inequity.
As we enter our third year of the COVID-19 pandemic and its worsening social and economic impacts, we need to use every tool at our disposal to counter these drivers of health inequity. Legal remedies and justice institutions can make an important contribution to a more equitable Australia.
Tessa Boyd-Caine is CEO, Health Justice Australia
See Croakey’s archive of articles on justice and health.
