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The Human Rights Of Australians With Disabilities - A Challenge For Government

Brian Burdekin
Federal Human Rights Commissioner 1986-1994

1989 KENNETH JENKINS ORATION
ACROD Convention
Canberra, 9 November 1989

Brian Burdekin

I would like to thank ACROD for inviting me to deliver the Kenneth Jenkins Oration; both because I regard it as a privilege and because it gives me the opportunity to address a gathering of the key people in the disability field at an important time in the work of the Human Rights and Equal Opportunity Commission.

On a personal note, I would like to say I am delighted to have Edith Hall with us. Twenty years ago, Edith gave me several lessons in public speaking - so you can blame her for any defects in delivery!

My central theme in this address is that the human rights of Australians with disabilities are the same as the human rights. of all Australians. However, because of the special circumstances of those with disabilities, special measures are required by government to ensure that those rights can be exercised. Despite some efforts, largely in response to the pressures from disability organisations and their members, governments have not adequately provided these special measures or are not adequately implementing them.

The Human Rights and Equal Opportunity Commission, which is charged with advising the Federal Government on the protection of human rights, will be making the rights of people with disabilities a major priority in the next 12-18 months.

During the course of this morning's address, I will be outlining some of the work of the Commission, some of the limitations on this work, some avenues for improvement, and announcing several new initiatives we are undertaking. But I would like to begin by addressing the concept of the Australian expression of, and the work of the Commission in promoting and protecting, human rights.

Human rights

What, exactly, do we mean by human rights? There has been philosophical, legal and political argument about that for thousands of years. But for the Commission, human rights are fairly well defined.

Human rights for the Commission's purposes are those set out in certain international instruments on human rights, incorporated in federal law in the Human Rights and Equal Opportunity Commission Act 1986. In Australia, therefore, setting of national standards on human rights is directly linked to international standards on human rights. In 1945, the international community, through the United Nations, commenced the process of formulating fundamental rights which all nations would recognise for all people. In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. That Declaration sets out basic rights which all people are entitled to enjoy. I emphasise, all people.

One of the fundamental principles of the international law of human rights is that all people are entitled to protection of their rights without discrimination. That includes people with disabilities of any kind: physical, intellectual, or psychiatric.

Specific Legislation

Later human rights instruments have developed the principles of the Universal Declaration of Human Rights in more detail, and applied them to particular problems and the needs of specific groups. So, for example, there is:

New Instruments Being Developed

This process of development is by no means finished. Currently before the United Nations is a Draft Convention on the Rights of the Child. This Convention offers significantly improved protection for children on a very wide range of issues. Some of the issues most relevant to many present would be:

I strongly support Australia signing this Convention as soon as possible after it is adopted by the General Assembly this month. I hope that individuals and organisations represented here will also support it; and I will be pleased to provide more information concerning the Convention to anyone interested.

Also being developed in the United Nations system is a Draft Body of Principles and Guarantees for the Protection of Mentally Ill Persons and for the Improvement of Mental Health Care. I will return to these principles later, because I believe they provide an important opportunity for raising standards in Australia.

But I want to first focus on the standards which presently exist. The Human Rights and Equal Opportunity Commission Act incorporates the International Covenant on Civil and Political Rights. This Covenant imposes clear obligations on the Australian Government to recognise and protect certain rights for all individuals without discrimination. Let me re-emphasise; that includes people with disabilities of any kind, including psychiatric disabilities. The rights set out include:

The Human Rights and Equal Opportunity Commission

The Australian Parliament has given expression to this body of international human rights law largely through the mechanism of a special Commission. Australia's first federal Human Rights Commission was set up by the Fraser Government in 1981. Human rights, for the purposes of the Commission's jurisdiction, were defined by reference to certain international instruments on human rights to which I will refer later.

That Human Rights Commission was seen to some extent as an experiment. A body giving effect to international human rights standards was a new development for Australia. The procedures to be used by the Commission, particularly the emphasis on resolution of disputes by conciliation, rather than by more traditional legal processes, were also novel and were the subject of some controversy.

However, after five years experience, our Commission, the Human Rights and Equal Opportunity Commission, was set up by the Hawke Government in December 1986. The Commission is composed of a part-time President and four Commissioners: the Human Rights Commissioner, the Race Discrimination Commissioner, the Sex Discrimination Commissioner and the Privacy Commissioner.

In addition to administering the Racial Discrimination Act, the Sex Discrimination Act, which incorporate the international conventions relating to race and sex, and the Privacy Act, the Commission also has wider human rights responsibilities under the Human Rights and Equal Opportunity Commission Act 1986. These are defined by reference to:

Activities of the Commission

By way of introduction to the Commission's work in the disability field, I want to give you a very brief overview of some of the recent activities of the Commission across the range of issues for which it has some responsibility. I think this is important, both as an indication of what is possible, and of the sorts of competing demands that are placed upon us.

Among the more notable features of our work in the last year were the release of the Report of the Homeless Children Inquiry, follow-up action on the Toomelah Inquiry, the commencement of a National Inquiry into Racist Violence and the expansion of the Commission's role into the area of privacy protection.

Public Inquiries

The charter of the Human Rights and Equal Opportunity Commission is to promote the acceptance and observance of human rights and equal opportunity throughout Australia. We see public inquiries on issues of major concern as one of the most effective ways to achieve this objective.

An important test of this strategy was the release in February this year of our Report on Homeless Children. The Inquiry's findings received comprehensive coverage across Australia, generated considerable public debate and prompted an encouraging response from governments and the community. The final success of the Inquiry can only be measured by the extent to which its major recommendations are accepted. I will continue to monitor responses to the Report over the next twelve months and am reconvening the Inquiry in four weeks to hear evidence from governments. However, there is no doubt that the Homeless Children Inquiry has helped to place this issue squarely on the national agenda.

The National Inquiry into Racist Violence, headed by the Race Discrimination Commissioner, Irene Moss, was announced in December last year following an apparent disturbing increase in organised racist violence in various parts of Australia. While still in its early stages, the Inquiry has already attracted a good deal of community. interest and debate. More than 100 written submissions have been received and public hearings are underway, with the report of the Inquiry due to be released in early 1990.

The Commission's policy of monitoring the results of its public inquiries was reinforced this year with the release of the Toomelah Review. The initial report of that Inquiry, which investigated living conditions in Aboriginal settlements on the NSW/Queensland border, was released in June 1988. The Toomelah Review documents very substantial improvements at Toomelah in the six months following our report.

Complaint Handling

A vital part of the Commission's work is the handling of individual complaints. The major policy objective in this area is to resolve complaints wherever possible through conciliation; an informal, confidential and comparatively low cost alternative to litigation. Over 90% of the complaints we handle are resolved through conciliation. That is, I believe, an enormous advantage to those we assist; including Australians with disabilities.

Work with NGOs

A key policy of the Commission is to work closely with a wide spectrum of community organisations on issues of common concern. I believe this will be very important in the area of disability.

Discrimination on the basis of age is another area in which the Commission has been consulting closely with representative community groups; including the Council on the Ageing and the Youth Affairs Council of Australia.

Submissions on Legislation and Policy

One of the most important functions of the Commission is to promote the protection of human rights in government legislation and policies. We made submissions to a number of government inquiries in 1988-89, on issues ranging from the employment of people with disabilities to human rights abuses in Australia's external territories.

The Declaration on the Rights of Disabled Persons

As federal Human Rights Commissioner, such authority as I have in the area of disability derives from the Human Rights and Equal Opportunity Commission Act. This Act incorporates certain rights of people with disabilities into federal law, but only in an indirect and incomplete way. The Act is therefore a starting point, but very much only a starting point.

The Act incorporates the United Nations Declaration on the Rights of Disabled Persons and the Declaration on the Rights of Mentally Retarded Persons; I apologise for the anachronistic terminology. In spite of their age, the Declarations do set out a range of very important rights.

The Declaration of the Rights of Disabled Persons states that disabled persons have:

The Declaration on the Rights of "Mentally Retarded" Persons covers the same range of rights, and adds

These Declarations, then, recognise a wide range of rights. But they do not themselves constitute sufficient protection for these rights. They effectively represent an outline of a program for action; but they do not, of themselves, constitute an effective code of legal protection.

Like most international documents on human rights, the Declarations envisage that more detailed legal protection and practical measures will be developed by each country. In that process, we in Australia have a long way to go.

Jurisdiction of the Commission

Federal law, in particular, the Human Rights and Equal Opportunity Commission Act itself, gives the rights I have just enumerated only limited protection. Some of these limitations exist for constitutional reasons. But there is certainly more that could be done under existing federal constitutional powers.

The Act only applies concerning "acts or practices" of the Commonwealth itself and to territories other than the Northern Territory. It has no direct effect on actions of State governments or the private sector. The only exception to this is our jurisdiction over discrimination in employment under International Labour Organisation Convention No. 111; but this jurisdiction does not presently include disability. I will discuss this aspect later. The Act does not make breaches of the rights set out unlawful, even for Commonwealth government authorities.

Nor does it provide for enforceable remedies. In dealing with complaints involving rights of people with disabilities, the Commission can inquire into the complaint, and attempt to resolve it by conciliation. But if a conciliated settlement cannot be reached my only power is to report to the Federal Government. We cannot make any binding determination or orders which can be enforced; as in the areas of sex discrimination, race discrimination and privacy protection.

Apart from handling individual complaints, however, the Commission has the power to review existing or proposed federal legislation affecting human rights, including the rights of people with disabilities. But again, this is only a power to make recommendations.

Results under these mechanisms

The Commission has been active on a variety of issues affecting the rights of people with disabilities. I believe we have achieved significant results within our existing resources and powers, but it is clear that more extensive and effective protection of rights is necessary.

It may be instructive if I outline several examples of issues we have dealt with.

Public Service Employment - Medical Standards

One of the first major issues which emerged from complaints lodged with the Commission involved employment of people with disabilities in the Commonwealth Public Service itself.

During 1987, the Commission received a number of complaints of discrimination based on various intellectual and psychiatric disabilities. Employees with histories of mental health problems were failing to meet the medical standards applied for permanent appointment to the Australian Public Service. All the complainants were working in positions with no particular medical requirements, and all had satisfactory work records. Similar complaints were received from people with various physical disabilities.

I found it particularly disturbing that in a number of cases, complainants who had been recruited into the Australian Public Service under affirmative action programs for people with disabilities, found themselves, twelve months later, rejected from the Service because they did not meet the medical standards applied for permanent appointment.

These cases were taken up with the departments concerned and each was successfully resolved. But I was also concerned to address the matter at a broader policy level.

Our initial investigations made it clear that there were problems with the general medical assessment procedures applied by Commonwealth Medical Officers and individual departments. The complaints highlighted basic deficiencies in the handbook used by Commonwealth Medical Officers. We prepared a submission identifying these problems and took the matter up with the Public Service Commissioner and the heads of federal departments.

In this submission we recommended that there should be no mandatory medical examination for permanent appointment to the Australian Public Service; except in relation to jobs with identifiable medical risks, or where necessary for assessment for superannuation purposes. Other recommendations included giving applicants more information about medical assessment procedures, and a right to have their assessments reviewed.

We have followed up these recommendations with the Department of Community Services and Health and the Public Service Commissioner; to date the response has been encouraging.

Specifically, as a result of the Commission's involvement in this area, programs have been undertaken to train Medical Officers and other senior departmental officers in disability and human rights issues. Commission staff have been invited to participate in this training, to assist in preventing future cases of discrimination.

Employees' Association Membership

My second example concerns a complaint lodged by an employees' association on behalf of its members with disabilities, alleging that a disabled persons' scheme administered by a major government instrumentality, employing over 100,000 staff, was discriminatory.

The scheme provided that persons with disabilities were only entitled to be appointed as temporary staff, thus making them ineligible for benefits available to permanent staff, including rights of transfer and promotion. The complainant also alleged that the corporation fixed the salaries of those employees as a percentage of other employees' salaries on the assumption that the output and productivity of staff with disabilities would be less.

Appointment to the permanent staff could only be obtained by sitting an entrance examination which failed to take into account the needs of disabled candidates.

The matter was successfully conciliated with the two parties agreeing to an 'on-the-job' review of all staff with disabilities employed under the disabled persons' scheme. This review included an analysis of duties, job satisfaction, work progress and scope for career development It also appraised the special needs of each employee with a disability in relation to access to training and the provision of physical aids. A specialist consultant was appointed to assist the review and to recommend changes in areas such as job design. It was also agreed that the consultant would advise on the development of management and staff training programs relevant to these employees, and that consideration would be given to additional measures for persons with disabilities employed.

This example demonstrates an important part of the complaint handling work; that a single complaint can lead to improvements to the situation of a large number of people with disabilities, especially if the resolution involves system-wide change.

Immigration

In the last 2 1/2 years, I have also received many complaints of discrimination against people with disabilities in the administration of Australian immigration policy.. The migration regulations included a list of 'prescribed diseases' which included various disabilities.

It became clear that the immigration authorities were failing to separate two sets of issues: whether a person's condition represented a danger to public health, as in the case of highly infectious diseases, and whether their condition was likely to lead to 'excessive' costs for the health and social security systems. In addition, decision-making in a number of cases seemed to be based on an inflexible approach. People with some disabilities were being virtually automatically excluded; rather than a proper assessment being made of individual and family circumstances in each case.

The Commission took up a number of individual cases. But I also took up the issue at a broader policy level, in a submission to the Committee to Advise on Australia's Immigration Policies.

I am pleased to say that the Committee accepted our recommendation that there should be a separation of public health, illness and disability issues in the application of our immigration policies. This has important implications for family reunion applications where the intending immigrant is disabled.

The Commission continues to receive complaints in this area. What is needed for fair decision making is that . the guidelines on which the Department makes decisions, and the cost-benefit analysis applied, should be publicly available for scrutiny. That way we could have more confidence that fair decisions will be made from the outset, rather than having to address the matter only after complaints are made.

A House of Representatives Committee Inquiry has recently been announced in this area and I will be making further submissions to that Inquiry.

These examples indicate that it is possible for the Commission, within its limited resources and powers, to achieve results on some issues by a combination of individual complaint handling and its broader functions of legislative and policy review. But they also point to deficiencies in the structures for protection of the rights of people with disabilities; even within the Federal Government's own areas of operation, and notwithstanding the passage of equal opportunity and affirmative action legislation.

Employment of People with Disabilities - Senate Inquiry

I recently prepared a detailed submission to the Senate Inquiry on Employment of People with Disabilities. That submission identified a number of areas of concern and made a range of recommendations.

Discrimination in federal public service employment, including discrimination on the basis of disability, is already prohibited under the Public Service Act. But it is quite clear that as well as measures prohibiting acts of discrimination, positive measures are needed to secure effective access to employment for people with disabilities.

The Public Service Act was amended in 1984 to require departments to implement Equal Employment Opportunity (E.E.O.) programs for people with disabilities. Each program was required to provide a detailed plan for enhanced career opportunities for people with disabilities. Each department was required to report to the Public Service Board on the development and implementation of these programs, and an E.E.O. Bureau was set up within the Board to promote and monitor these programs.

A central element of the E.E.O. Bureau's policy was the principle of reasonable adjustment. Departments were expected to make reasonable adjustments to work environments to reduce or eliminate the effects of disabilities and enable people with disabilities to compete more effectively, on merit, for recruitment and career advancement.

This policy was regarded as highly successful. However, in the reorganisation of the Australian Public Service undertaken in 1987, the Public Service Board was abolished, and with it the E.E.O. Bureau.

Its functions have been taken over to some extent by a much smaller unit within the new Public Service Commission, and by the Department of Employment Education and Training. Responsibility for E.E.O. programs has to a large extent been devolved to individual departments.

In a recent submission to the Senate Inquiry, I expressed serious concern that these changes have dissipated the successes achieved in E.E.O. programs through the 1970s and 1980s. Many essential functions cannot be performed effectively by individual departments acting alone. For example, few individual departments have adequate E.E.O. data bases to guide policy. Despite the theoretical protection provided in the Public Service Act, our submission concluded that it is now possible for departments to avoid an effective commitment to equality of employment opportunity for people with disabilities.

The Federal Government's recent announcement of increased funding for recruitment programs for people with disabilities into the Australian Public Service through the Department of Employment Education and Training is very welcome. I hope it signals a renewed commitment to effective measures for achieving equality of opportunity for people with disabilities in federal public employment.

However, the Program to date has only involved a handful of people; so much more needs to be done in this area.

I have been talking mainly about rights concerning employment. The rights recognised by the United Nations declarations cover a much wider range. But there is a strong connection between equal employment opportunity and enjoyment of other rights.

On the one hand, for many people, access to employment opportunities determines how effective their access is to other opportunities in life. On the other hand, effective access to employment for many people with disabilities cannot be achieved solely by legislation proscribing employment related discrimination, or other directly work-related measures.

The Commission's submission to the Senate Inquiry on Employment for People with Disabilities identified a number of connected issues in this respect. Our recommendations included

Another major area addressed by the Commission submission on employment for people with disabilities is the effect of accommodation on employment opportunities. Some of you may be aware of a report released by the Commission on Accommodation Options for People with Severe Disabilities, prepared by a consultant, Cameron Engel. That report focussed on Queensland and basically concluded that there is no coherent policy in this area.

The recently announced Inquiry by the Senate Standing Committee on Community Affairs into Accommodation for People with Disabilities, gives an important opportunity to address the problems in this area. I will be making a submission to this Inquiry. People with severe disabilities may have little choice but to reside in an institution such as a nursing home. Some such institutions do not encourage residents to participate in employment, education or training. Routines, a sheltered environment and lack of information may in fact constitute positive barriers to participation.

The Federal Government's Disability Services Act offers the potential for positive developments in many respects. In my view the Act, in linking federal funding of services to human rights standards, represents an extremely important model which should serve as a precedent in other areas.

However, I am concerned that the potential of the Act for improving services for people with disabilities is not being achieved in practice. Our submission to the Senate Inquiry on Employment for People with Disabilities recommended that there should be more effective mechanisms for implementation of the standards and objectives which have already been legislated in the Disability Services Act.

In this context I welcome the announcement in the last federal Budget of increased funding for information and advocacy services, and of the introduction of new complaints mechanisms for the users of services.

The Department of Community Services and Health has recently written to the Commission to suggest a meeting to discuss initiatives to ensure more effective implementation of the Disability Services Act. Again, this is welcome.

A major emphasis of the Act is on encouraging greater movement of people with disabilities into the community, and into open, or competitive, employment. But in this process people with disabilities still face serious barriers.

Limitations in the Protection of these Rights

I now want to return to the present incomplete protection under Commonwealth law against discrimination based on disability in employment and other areas of life in our society.

As I have already mentioned, federal legislation presently gives the Human Rights and Equal Opportunity Commission jurisdiction in cases involving the rights of people with disabilities only where Commonwealth laws or actions are concerned.

However, the Commission does have jurisdiction to inquire into complaints of discrimination in employment, including State government and private sector employment, on various grounds.

These grounds do not currently include disability. However, International Labour Organisation Convention No.111, on which this jurisdiction is based, provides for additional grounds of discrimination to be specified by national governments in consultation with employers and unions. In accordance with this, the Human Rights and Equal Opportunity Commission Act provides for further grounds of discrimination to be added to the Commission's jurisdiction by regulation. In my view, High Court decisions in recent years make it quite clear that such regulations would be constitutionally valid.

The Federal Government's National AIDS Strategy, recently released, states that regulations will be made to add discrimination based on AIDS or HIV status to the Commission's jurisdiction. I can see no reason why similar regulations should not be made concermng employment discrimination based on disability in general.

State Legislation

Four States - New South Wales, Victoria, South Australia and Western Australia - now offer some protection for the rights of people with disabilities under anti-discrimination law. There is considerable variation in the terms of this legislation, in the definitions adopted and the scope of the protection offered. I note in passing that uncertainties and inconsistencies in definitions cause far too many problems in this area.

In New South Wales, Victoria and Western Australia, discrimination based on either physical and intellectual impairment is unlawful in a range of areas, including employment, accommodation, and provision of goods or services. The Victorian and Western Australian definitions also extend to at least some cases of psychiatric disability. In South Australia at present, only physical impairment is covered, although there is presently a Bill before the South Australian Parliament to extend the Equal Opportunity Act to include intellectual impairment.

State legislation is therefore important, but inadequate in a number of ways.

Most obviously, Tasmama, Queensland, the Northern Territory and the A.C.T. lack any legislative protection against discrimination m this area, other than the very limited protection offered under federal law.

Most State laws in this area are also confined in their coverage to a negative prohibition of overt acts of discrimination. There is little to address more systemic problems, such as:

Measures on Intellectual Disability

Protection of the rights of people with intellectual disabilities raises several issues which are, to some extent, distinct from those affecting people with physical disabilities.

A right which is absolutely fundamental in this context is the right for people to be able to make their own decisions to the maximum extent possible, and to have their rights and interests respected where they lack capacity to make their own decisions.

Our Commission's direct role in this area is limited. Most of these issues are presently matters of State legislation and administration.

However, under existing Federal legislation the Commission has been involved in the issue of who should have the power to consent to radical surgery on behalf of a child not capable of making a full and informed decision. This involvement has been through our power to intervene in court proceedings to ensure that basic human rights are taken into account by the court.

This is an important power, but one which we exercise rarely because of the costs involved.

Last year the Family Court requested the Commission to intervene in a case concerning a teenage girl with severe developmental disabilities. Her parents, supported by some medical professionals, wanted a hysterectomy performed on her to avoid various problems which they feared would occur as she matured. The Disability Rights Centre in Sydney, also supported by medical experts, sought an injunction to stop the operation.

The Commission in its submissions drew the Court's attention to relevant human rights principles. It did not argue that such an operation should never be performed, but rather that it should only be performed if, and when, it was shown to be clearly necessary.

The Court in that case took a rather different approach, stating in effect that it was the right of parents to make such decisions and that the Courts should generally not interfere.

However, in a subsequent and similar case in Victoria, where the Commission again made submissions, the Chief Justice of the Family Court took a position much closer to the principles proposed by the Commission. He stressed that the rights of parents in such cases should not be over-emphasised at the expense of the rights and interests of the child, and thought that non-therapeutic operations should not be performed without court consent.

The Commission intervened in these cases to ensure that the rights of the children concerned received adequate consideration.

Some States now have guardianship legislation which in many cases may offer a better means of dealing with issues of consent to medical treatment. Most recently, the New South Wales legislation in this area was finally proclaimed and a Guardianship Hoard established. I have written to the responsible Minister welcoming this development, but also stressing the need for the operation of the legislation to be regularly reviewed and for regular consultation with appropriate organisations representing people with disabilities.

Illness and Disability

An area which presents considerable problems under present legislation is the relationship between disability and illness.

This arises in some cases concerning physical disabilities. I have already referred to issues of this kind in immigration policy.

There are also, for example, problems about whether present legislation against discrimination based on impairment covers discrimination related to illness, including HIV infection.

This leads me into one of the major points I want to address today.

Mental Illness

In my view many of the most pressing issues relating to deficiencies in legislation dealing with disabilities concern mental illnesses. There are problems with legislation affecting people psychiatric disabilities, or facilities available for them, or both, in all Australian jurisdictions.

In several States, recent inquiries have brought to light cases of shocking abuse and neglect, some going back over many years.

In New South Wales, an Inquiry into the State's mental health system has been occupied for months with the disturbing evidence concerning just one institution; the Chelmsford Private Hospital. According to evidence already made public, violations of human rights involved were clearly horrific. The fact that such situations can continue for so long indicates to me that there are serious inadequacies in the legislative and administrative mechanisms which exist to ensure. that institutions meet acceptable standards and that the rights of residents are protected.

It is no use having standards which are set, without mechanisms to ensure that they are met. We must therefore focus our energies; not only on law reform but on a rigorous examination of existing regulations and the way they are administered in practice.

International Developments

One of the problems in achieving effective protection of the rights of mentally ill people on a national basis is that there are at present no clear and specifically applicable international standards in this area.

For constitutional reasons, human rights protection at the federal level in Australia is largely based on international instruments in conjunction with the Federal Parliament's power to legislate on external affairs.

As I mentioned in my introduction, there is a body of principles and guarantees for the protection of the rights of mentally ill persons currently being developed within the United Nations system.

At present, these principles focus, in particular, on the small minority of people suffering from mental illness who need to be admitted involuntarily to a mental health facility. Obviously these persons are especially vulnerable and their basic rights require special protections.

To give some examples, the draft body of principles includes:

In my view this body of principles offers an opportunity for substantially improved protection of human rights in this area. I will refer to ways of taking up this opportunity at the conclusion of these remarks.

Where to from here?

This review of the present position indicates a wide range of issues requiring our immediate attention. There are several inquiries and initiatives underway which relate to some of these issues. But I think it is clear that many of the issues are only being addressed in a piecemeal fashion.

United States Draft Legislation

I want briefly to draw an international comparison to show what is possible. In the United States, a federal Act providing wide protection for the rights of people with disabilities is currently under consideration. The Americans With Disabilities Act will apply to people with physical or other impairments. It also specifically includes people affected by AIDS or the HIV virus. The legislation will prohibit discrimination in either the public or private sector in relation to:

In addition all federal departments and agencies, state and local governments will also be barred from discriminating in the provision of public services.

The Act will impose a number of positive requirements as welt as barring discrimination in a more narrow sense. New buses, trains and subways will be required to be accessible to people with disabilities. Most new or renovated buildings, and some existing buildings, will have to comply with accessibility standards. Most employers, whether in the public or private sector, will have to comply with the principle of "reasonable accommodation" to make employment and promotion opportunities accessible to people with disabilities.

The legislation clearly provides for enforceable remedies for breaches of these rights.

This Act, therefore, will provide wide ranging protection on a uniform national basis. It provides a striking contrast with the present position in Australia.

I want to emphasise that, like the Australian Federal Government, the United States Government has limited legislative powers. The Americans With Disabilities Act therefore involves a much bolder use of federal power than has been attempted in Australia to date. In the United States, Federal legislation on human rights uses every available source of power: federal power over interstate commerce; conditions on grants of federal funds; conditions on contracts with the private sector, and other "heads of power" - as lawyers like to describe them.

In Australia, the Disability Services Act represents an important precedent in the use of more imaginative models to achieve human rights objectives. But clearly, much more remains to be achieved.

I want to emphasise that this new legislation in the United States did not simply happen of its own accord. Ten years ago, when I was working in Washington, there was intense lobbying by advocacy groups for people with disabilities. In all, 20 years work was needed to achieve the political support and political will necessary to get to this point. Nor is the process complete. While the legislation now has the support of the U.S. Senate and of the white House, it is yet to be finally cleared by the third crucial part of the troika, the House of Representatives.

The Implications of a Rights-Based Approach

The approach of this American Bill emphasises something that the Commission was able to demonstrate in the Homeless Children Inquiry; that a rights-based approach, as opposed to a 'welfare' approach, can be of enormous benefit in analysing and addressing the needs of disadvantaged Australians.

The problem of child and youth homelessness was known before the Inquiry commenced, though not as well-documented and widely publicised.. The distinctive contribution of our Inquiry was that its approach was based on human rights instruments rather than purely on more general welfare considerations and arguments.

This has two sets of consequences.

The human rights basis of the Inquiry affected the approach to recommendations for solutions to the problems identified. Human rights provisions do not dictate what social policies and programs should be instituted to deal with a problem such as child and youth homelessness down to the last detail. But they do emphasise obligations which governments have undertaken and which they must honour.

The second kind of implications of an approach based on rights deal with practical implementation. Human rights instruments provide standards around which the efforts of advocacy groups and service providers can be organised. They provide standards to guide government action and standards which advocacy groups can use to measure governments' actions against.

Commission's Program for Action

I have outlined the basis on which the Commission operates, and the sort of activities we have undertaken. I have also identified the limitations of our jurisdiction in this area. I want now to turn to ways in which we can deal with these limitations, to effectively ensure the rights of people with disabilities.

I indicated recently in Melbourne that promotion of the rights of people with disabilities would be the area on which I intend to focus my activities over the next 12 to 18 months. The range of activities to be undertaken will be known as the Commission's Program for Action on Disability.

This program has a number of elements, and I am delighted to have the opportunity of this Oration to outline them to you. But the central aim is to put the Commission in a position to be able to give a comprehensive report to the Federal Government by the end of next year, on the legislative and programmatic steps that are required to ensure compliance by Australia with international human rights standards which we have undertaken to honour.

Physical and Intellectual Disability

Last year I commissioned a study to examine the need for federal legislation to protect the rights of people with physical or intellectual disabilities.

A discussion paper was finalised this year by the National Council on Intellectual Disability in consultation with ACROD and Disabled People's International. This method was considered the most appropriate due to the extensive experience and infrastructures which exist in the areas of physical and intellectual disabilities. The tasks of the organisations involved included gathering, analysing, summarising and presenting existing materials and experience in a way which wilt enable us to focus on the most widespread and serious areas of discrimination.

The discussion paper identifies important recommendations for legal and practical measures in the areas of:

The next stage of the project is the release of this discussion paper for consultation; so that a wide range of people concerned with disability can comment on the issues the paper raises and suggest priorities within it. This paper will be released in Human Rights Week (the first week in December) and will be open for discussion until the end of April 1990.

I believe this will provide a very thorough picture of the problems that need to be addressed. The Commission will then make a detailed analysis of the material received, in terms of international human rights standards and our national obligation, and identify the specific actions which governments need to take to meet those obligations.

Mental Illness and Psychiatric Disability

The discussion paper, and the subsequent consultation and analysis deals only with issues of physical and intellectual disabilities. The discussion paper specifically excluded mental illness and psychiatric disabilities, for two reasons.

First there are differences between the organisations, infrastructures, institutions and processes in this area and that of intellectual and physical disability.

It also appeared to us that physical and intellectual disability on the one hand, and mental illness and psychiatric disability on the other, present a number of separate issues which need to be dealt with separately.

Some time ago the Commonwealth, State and Territory Health Ministers received a major report on mental health and mental health services; The Eisen-Wolfenden Report. I regard this Report as significant, at least insofar as it recommended that there should be a co-ordinated national policy on mental health services, involving all levels of government as well as non-government agencies and organisations. However, I must say I find it astounding that in dealing with Commonwealth responsibilities in this area, no mention is made of the Federal Government's obligations in respect of basic human rights for disabled Australians.

I will be seeking discussions with government in the next few months to ascertain the extent to which the consultative process following from this Report has dealt with issues of concern to me as federal Human Rights Commissioner.

The major human rights issues in relation to mental illness which have received attention as human rights issues have concerned involuntary treatment and detention. Human rights questions have generally been raised by people seeking to restrict detention and involuntary treatment. (I should make it quite clear in this context that the Human Rights and Equal Opportunity Commission has no connection with the Citizens Commission on Human Rights.)

The International Covenant on Civil and Political Rights recognises the rights to privacy, to liberty and security of person, and it prohibits arbitrary detention. It does not give any detailed guidance on the circumstances in which involuntary treatment is permissible or how it should be regulated. But as an international treaty it could serve as the legal basis for detailed national legislation setting standards on these issues.

The Declaration on the Rights of Disabled Persons adds more detail, recognising:

These rights, which might generally be classed as "liberty rights", are important, but they do not exhaust all the issues in this area. The human rights instruments also deal with a range of positive rights; rights to certain types and standards of services and benefits. Some of the rights in this category set out in the Declaration on the Rights of Disabled Persons include:

There is also, most importantly, a right to protection from discrimination.

Why an Inquiry?

I have been holding discussions with a range of people concerned with mental illness, and these discussions confirm my view that the treatment of our mentally ill is a national disgrace. I intend to hold further consultations with organisations concerned with mental illness prior to announcing the terms of reference for this Inquiry, and I take this opportunity to invite ACROD to participate in those consultations.

The Homeless Children Report

It is not accidental that my decision to conduct a national inquiry in the area of mental illness came at this point. One of the things which caused me the gravest concern during that inquiry was evidence, in all States and Territories, that there are an increasing number of mentally ill children and young people turning up at crisis refuges. That evidence is, I believe, something that, as a nation, we must immediately respond to.

It is quite clear that problems of mental illness increase the risk of people, including children, becoming homeless. It is equally clear both from evidence I have gathered here and overseas, that homelessness, in turn, exacerbates the risks and complications of mental illness.

Conclusion

The Program for Action on Disability is, in summary:

The Commission has a clear policy of working closely with organisations like ACROD which have the experience and expertise needed to achieve important reforms. As I said at the outset, this opportunity to let you know of our plans is one which I value highly.

The program I have outlined will involve a great deal of further work, not just for the Commission, but, if it is to be effective, for your organisations as well. Your record of constructive engagement m challenging government is well known. I hope that over the coming months, we can cooperate closely on this programme of action. Effective protection of the human rights of Australians with disabilities will be a challenge to government - and to us all.