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Australia's disability rights commitments - onshore or offshore processing?
or, early release of people with disability into an inclusive Australian community

Queensland disability summit, Cairns, 22 September 2011
Graeme Innes AM
Disability Discrimination Commissioner

I begin by acknowledging the traditional owners of the land on which we meet.

Last week, at the National Disability Summit in Melbourne, I gave a paper called "Changing the disability rights climate".

I started with the thought that we are too used to a glacial pace of change on many disability rights issues. But that as we've seen as a result of global warming, sometimes glacial change can happen very fast: with huge chunks of Antarctic ice shelf breaking off into the sea; and huge areas of Arctic sea ice melting.

I compared that to the opportunities for progress on disability rights in Australia, in particular the development of a National Disability Strategy, and a National Disability Insurance Scheme.

I argued that change in the disability rights climate is one sort of climate change that we want to see happen. And it will only keep happening if we humans keep working together to induce that change.

Michael Hogan suggested to me that it would be useful to cover some of the same issues, and take the discussion further. I'm happy to do that.

But I was a bit concerned that climate change could be seen as quite a controversial subject for me to be discussing as a statutory officer. So I thought I would go for a less controversial theme today, with a title like this:

Australia's disability rights commitments: onshore or offshore processing? Or: early release of people with disability into an inclusive Australian community.

Okay, so it turns out this week that onshore processing, and release from detention into the Australian community, is not so uncontroversial either. Who would have thought?

But what's striking in the disability rights area, in contrast to many other current areas of public policy and public debate, is how much agreement has been achieved in recent months, and how quickly: not only that there is a serious problem that has to be addressed, but on what the way forward should be.

I don't mean that all the hard work is done, and we can just sit back and watch the good times roll. What I do mean is that the pathway forward is clearer than it has ever been before; that governments, and political parties on all sides, have committed to taking that pathway, in partnership with people with disability and their organisations; and that all of us must see those commitments delivered on.

Let me explain the reference to onshore or offshore processing of Australia's disability rights commitments.

It's regrettably common, both for opponents and supporters of human rights in Australia, to talk as if human rights instruments emanate from the UN as some form of world government, which issues dictates to previously sovereign nation states.

Of course, that's as much nonsense in the area of human rights as it is in areas like climate change.

Legally, human rights treaties are agreements between governments. The role of the UN is to assist in their development, and advise on their implementation. Human rights treaties are a process in which governments make commitments to the other nations of the world, but more importantly they make commitments to their own peoples. These commitments reflect values which we in Australia hold deeply, even if we do not always live up to them.

We look to our own governments to deliver domestically on the commitments they have made internationally:

Australia became a party to the Convention on the Rights of Persons with Disabilities in 2008.

This involves a degree of international accountability. As required, Australia lodged its first report under the Convention last year. It's available on the Commonwealth Attorney-General's Department website. And that report will be considered sometime next year by the international Committee on the Rights of Persons with Disabilities which was set up under the Convention.

But the reporting process is not just an exercise in international accountability. It’s an opportunity for reflection by governments and policy makers, and for accountability to, and dialogue with, people with disability and their organisations.

That point is reinforced by the fact that disability organisations in Australia are currently working on their own parallel or "shadow" report to the Committee. Human rights monitoring committees welcome these kinds of shadow reports. They are an additional source of information when committees make their recommendations to governments on actions they should consider for implementation of treaty commitments.

There is one other important strand of international accountability under the Convention. In 2009, Australia became a party to the Optional Protocol under the Convention. This gives the Expert Committee power to receive complaints, from individuals, or groups of individuals, alleging that their rights have been breached.

There are some limits on this procedure. Most importantly, the Committee will not receive complaints unless all reasonably available domestic remedies have been exhausted first. So, if you can make a complaint under the Disability Discrimination Act, or the Queensland Anti-Discrimination Act, you would do that first, instead of going straight for the offshore processing option.

It's possible, although not certain, that if the complaint is about something the discrimination laws don't cover, but the Convention does, you would still be expected first to use the provision to make a complaint under the Australian Human Rights Commission Act.

Under this Act, the Commission can investigate, and report on, complaints that an act or practice by or on behalf of the Commonwealth Government is inconsistent with any of the human rights within the Commission's jurisdiction.

These human rights include the rights recognised in the Disability Convention.

It’s only acts or practices of the Commonwealth that are directly covered under this Act. So, is it New York or nothing if the issue involves a State government, and isn't covered by discrimination law? Well, not necessarily.

The Australian Human Rights Commission Act defines an "act" as including "a refusal or failure to do an act".

It is possible that, even where another level of government, or a private sector organisation, is the one directly involved in a breach of rights recognised under the Disability Convention, a complaint could be made under the AHRC Act that there has been a failure by the Commonwealth.

Whether complaints are processed onshore or offshore, it's clearly preferable that this sort of processing becomes unnecessary, or at least less important, through governments taking effective action themselves to ensure that their commitments on disability are met, and that human rights for people with disability in Australia are effectively complied with.

In Australia, we do have a framework for effective strategic action on disability rights, even if much of it is not filled out. In November 2009, Prime Minister Rudd announced the development of a National Disability Strategy, as a central mechanism for implementation of the Disability Convention. And no, I'm not just mentioning that announcement because I am in Queensland, but because the link between the Convention and a national strategy for implementation is so important.

In responding to the "Shut Out" report, the Prime Minister said

People with disability in Australia are too often left without the basic services and equipment they need; denied the chance to work and study or take advantage of opportunities to live their life to its full potential; discriminated against, shut out and isolated;
And people with disability and their families want Australia to change - they want an Australia which is inclusive, enabling, and which provides equality, and the opportunity for each person to fulfil their potential.

The NDS was released by Prime Minister Gillard in mid 2010, and endorsed by the Council of Australian Governments in February this year.

In the NDS, the Prime Minister and heads of State and Territory governments declared a shared vision for an inclusive Australian society that enables people with disability to fulfil their potential as equal citizens. The strategy points to economic, social and human rights imperatives to achieve of this vision.

The NDS requires that disability Ministers, and their departments, develop detailed plans for each of the priority areas identified, and bring these back to COAG early in 2012.

But it isn't necessary to wait for these plans, to start taking action around the NDS. There are already a range of current commitments and existing initiatives. The Commission is engaged in a number of these, in partnership with Commonwealth departments, representatives of people with disability, States and Territories, and industry. I'm pleased by the leadership shown in Queensland on a number of issues. To mention two, issues of livable housing design, and issues of accessible play areas for children.

There are also areas under the Strategy where Commonwealth departments can take the lead. For example, the federal Department of Finance on accessible procurement. This could be one means of turning around the dismal performance on employment of people with disability within the federal public service, which has gone backwards in the last two decades. This is a performance which is leading the rest of the Australian community in precisely the wrong direction.

To keep people in touch with what we are doing and thinking, about the NDS, The Commission has re-commenced its regular "Disability Rights Update" on the Commission website, together with continuing brief blog entries, and even briefer tweets. Please look at the September edition. And follow me on twitter at graemeinnes. Among other things, I've been tweeting about this conference.

Two recent developments to mention briefly:

I know a lot of work has occurred within and between governments, and I applaud that. But I am concerned about how far representative organisations of people with disability are being involved in that work, which is what COAG said would happen, and is what the Convention requires. Early 2012 is very close. It would be a sad result if disability organisations lost confidence in the onshore processes that have been laid out in the NDS, and felt compelled to resort to offshore complaints.

I turn now to progress towards a National Disability Insurance Scheme.

In 2010 the Government asked the Productivity Commission to consider an NDIS. And the Productivity Commission delivered its final report on 31 July 2011, recommending a national disability insurance scheme, involving close to doubling of current funding for disability services and supports, and major shifts towards consumer choice.

Just 8 days later, the government were releasing the report, committing in principle to implementing it, and allocating $10 million for initial processes. Almost immediately, support was expressed by the Opposition, and by most State and Territory Governments.

And just 10 days after that, COAG signed on. Not to every detail happening immediately, but to having an NDIS in place. I can't remember any other major public policy initiative in the last 30 years with support like that.

How did all this happen?

We should acknowledge first up the work of the Productivity Commission, and the decision by government to ask them to conduct this inquiry. This is a report with great weight - and I don't just mean the two volume paper version. The Productivity Commission has done people with disability in Australia, and the whole nation, a great service in highlighting and analysing exclusion and loss of opportunities for people with disability as major economic issues worth significant investments to address.

The Productivity Commission report provides strong analysis supporting the argument by a number of organisations, including my own over the years, that an NDIS would have overall economic benefits likely to substantially exceed scheme costs, by facilitating greater economic and social participation by people with disability, and families and carers.

The report also gives welcome emphasis to the point that limitation of individuals' social participation, and life choices, is itself an economic issue, even when it can't be measured directly in dollars. This is consistent with the approach of Treasury and the Australian Bureau of Statistics, which both emphasise human wellbeing, rather than solely GDP, as the appropriate measure of economic progress.

For too long, people with disability in Australia, and their families, have been paying for disability with social and economic exclusion, and lack of choices. As a whole, Australia has been paying as well - both economically and socially - by missing out on making the most of the contribution that the millions of people with disability in this country have to offer. Bill Shorten, for one, has pointed out that this is as unjust, and unacceptable, as putting a wall around one of our capital cities, and condemning everyone inside to inferior life chances and outcomes.

People with disability, and their families, might not have been literally behind barbed wire in detention centres, but much of the time - in terms of real opportunities for community participation and contribution - many of us might well have been. And many people with disability have been, and continue to be, quite literally in detention - behind walls of existing institutions, or new institutions being built, or our major accommodation option for many people with mental illnesses or intellectual disability: I mean prisons of course.

There are passages in the Productivity Commission report which describe starkly the injustice faced by people with disability right now in Australia, and present an irresistible case to change it. Stories about people who don't get any social interaction in 3 months, even a phone call. People who have to wear a nappy, because they don't get their reasonable personal care support needs met, in a country where people on $150,000 a year are encouraged to think they are doing it tough. The Productivity Commission does a great job in ripping into that sort of selfishness as a basis for public policy.

Of course, being able to present this sort of story and this sort of analysis, depended on listening to and taking seriously the experience of people with disability and their families and organisations, and relaying that experience to the public, and to decision makers. A key factor has been how clear and consistent the message from people with disability and their families and organisations has been. I congratulate the Every Australian Counts campaign in that respect.

Despite how many people with disability there are in Australia, disability has too often been strangely invisible in public discussion. Good media professionals tell us that nothing cuts through like real human stories. And we've seen that in the media response to the report, which has been overwhelmingly supportive, and has been calling for action faster than proposed by the Productivity Commission.

I'd like to repeat some of what I said to last year's National Disability Summit:

As the Productivity Commission points out, funding needed for these sorts of roles is very, very small, when compared to the total or additional funding needed for support for individuals: a few tens of millions of dollars compared to billions. Or you could look at it as just a few dollars from each of us.

This is barely even small change in the context of an economy with GDP approaching two trillion dollars. But in the world of disability rights in Australia right now, it would represent a huge difference.

One of the reasons I am keen to see early establishment of what we might call the "social change" division of a National Disability Insurance Agency, is because of the role this could play in driving the implementation of the National Disability Strategy.

In the Disability Convention, and in the National Disability Strategy, we have the vision, and a map of how to get there. Let's all keep working together to develop our onshore processes, to get people with disability and their families out from behind the walls of exclusion and discrimination, and into a fairer and more prosperous Australia.

Finally, I guess many of you flew to this conference - I did. I want to finish by talking about how some of our airlines think that two's company, but three's a crowd. Jetstar's disgraceful treatment of a group of people with multiple sclerosis several weeks ago -- refusing to let them fly because of the "two wheelchairs" policy - caused me to consider how far this policy could go.

The "two wheelchairs" policy, applied by budget airlines such as Jetstar, Virgin and Tiger, is justified by the argument that - because fewer staff are available, and turn-around times are shorter - airlines can only assist two people using wheelchairs on to the plane, and store two wheelchairs in the hold.

But really, for such an imaginative group as airline executives, this approach could be used to achieve much more. After all, isn't the main objective of airlines to have fewer people on their planes?

Let's start with babies. They have equipment - prams and strollers - which needs to be stored in the hold, and they need assistance onto the aircraft. So let's only have two of them. And think of the benefits- much less distraction from babies crying, and all that sooky baby talk from parents and other admirers in the seat next to you.

But why stop there. Take footballers. They usually carry a lot of equipment. And while most of them can get onto planes under their own steam, some need assistance off the plane after enjoying the alcoholic benefits of business class.

Now I know you'll say that an AFL team of twenty would have to fly to their games on ten separate planes. But this is really a small sacrifice to make in the cause of meeting the needs of airlines.

Perhaps we should go further. How about limiting each plane to two flight attendants. After all, they just block up the aisles with those anoying trolley's, try to sell us junk food at inflated prices, and interupt our enjoyment of movies or music with anoying safety announcements - made by ageing entertainers pretending to be airline captains. So, two of them, and a maximum of two announcements per flight.

But wait, there's more. How about two parliamentarians. They usually carry a lot of political baggage, and probably expect assistance on and off the plane, whether they need it or not.

And finally, let's only have two airline executives. They would need large bags to carry the large sallaries they earn, as they busily retrench Australian workers, and I'm sure they need some kind of assistance, even if its only in running an airline, instead of getting on and off it.

In fact, let's just re-name it the Noahs policy, as in noassistance, and only have two of everything on each plane. After all, the way we Australians with disability are treated by airlines, we might as well be travelling in the time of Noah's Ark.

Thanks for the chance to speak with you today.