1996 Kenneth Jenkins Oration
| Speech by Sir Ronald Wilson President, Human Rights and Equal Opportunity Commission ACROD National Convention, Perth 15 November 1996 |
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I am honoured and delighted to be here to deliver the Kenneth Jenkins Oration. My participation continues the involvement of members of the Human Rights and Equal Opportunity Commission with this event.
The third Oration was delivered in 1981 by Elizabeth Hastings, who is now my colleague as the Disability Discrimination Commissioner.
Her address emphasised ideas which may then have been perceived as radical and surprising: starting with the proposition that people with a disability really do have the same human rights as all other people; and that this includes rights to independence, and equal respect, and self determination in matters both small and large.
These ideas have gained much greater currency than they had fifteen years ago. They may indeed now be regarded as commonplace. But a moment's reflection by anyone connected with people with a disability should be enough to remind us that for many people with a disability these goals of independence and wholehearted respect are still at best an incomplete reality.
These goals were prominent among the aims of the International Year of Disabled Persons. The symbolic focus provided by that International Year provided the catalyst for an unprecedented amount of activity in Australia, at grassroots, public policy and legislative levels, directed to improved recognition and achievement of human rights for people with a disability.
The work of Kenneth Jenkins, which this Oration commemorates, demonstrated a breadth of vision which has inspired many thousands of people around the world to engage in sustained pratical commitment to the interests of people with a disability. He was a roving international ambassador of enormous influence. Kenneth Jenkins served as President of Rehabilitation International, Chairman of a World Commission on Rehabilitation and was invited to speak in no fewer than sixty three countries to consult and advise, confer and speak, on issues affecting people with a disability.
The importance of international standards on human rights as a basis for action in Australia to improve the position of people with a disability was the major theme of the 1989 Kenneth Jenkins Oration, delivered by Brian Burdekin as Human Rights Commissioner.
In some ways, Brian Burdekin has followed in the footsteps of Kenneth Jenkins. He now roves the world as the Special Adviser on National Human Rights Institutions with the UN High Commissioner for Human Rights. Like Jenkins, Burdekin is concerned with translating the high-minded phrases of international treaties into practical measures to improve the protection of and respect for human rights for ordinary human beings.
The choice for Australia
I would be remiss if I did not pause to comment on the deeply disturbing and distressing events in recent public and political debate in this country. The potential outcomes of that debate are so far-reaching as to confront every thoughtful Australian with a stark choice : What kind of Australia do you want to leave to your children and to the world community ? And there are none better placed to recognise what is in issue in that choice and who know the importance of making the right response than those who have a commitment to advance the wellbeing of people with a disability.
You will all know what I am talking about : the flirtation in recent months - in some sections of the community and of the media - with a vision of Australia as a less tolerant, less inclusive and less just society; a closure of minds and hearts under the colour of openness of debate; what threatens to be a new political correctness being stridently asserted in the name of challenging alleged "politically correct" constraints on public policy and free speech.
Now - after weeks that have caused pain, fear and insecurity to many, we have seen a recoiling from this. Our leaders in Federal Parliament have reaffirmed commitment to tolerance, inclusion and justice as fundamental constituting principles of Australian society. Many State leaders have done the same, and in some cases done it considerably earlier.
The Prime Minister has repudiated ill informed calls for retreat into isolationism, abandonment of foreign aid, and departure from membership of the United Nations.
There have also been statements recognising, though less extensively than might have been hoped, that the indigenous people of this country have been subject to a long history of injustice and that their present disadvantaged position must be addressed with realism, determination and, if necessary, with sacrifice.
This is not to say, however, that we can now be comfortable and relaxed, believing that enough has been done to put the genies of intolerance and indeed of hatred back in their bottles. No amount of political leadership, necessary though that leadership is, can absolve the rest of us from positive action for tolerance and inclusion and against prejudice within our own communities, organisations and workplaces.
You may be wondering what this has to do with people with a disability.
One answer is the obvious one that people with a disability are not a distinct class in Australian society. They are found among every sector of the community, including indigenous people and within the full range of Australia's ethnic diversity. For these people, there is no immunity from the disadvantages and injustices that have occurred and do occur in our nation on racial and ethnic grounds.
More importantly, the choices presented in the current debate about what sort of society we wish to be are immensely important to all people with a disability. Are we an inclusive society that values the participation of all its members? Are we committed to justice and the redress of injustice and disadvantage? Are we committed to human dignity and equal respect for all members of our society? Clearly, while these bells toll for all of us, they toll for people with a disability as much, if not more than, most.
Underlying these thoughts is the truth affirmed in the Universal Declaration of Human Rights in 1948 and reaffirmed in the World Conference on Human Rights in 1993 that human rights are universal, indivisible and interdependent. They find their unity in the recognition of that inherent dignity which belongs to every human being and from which is derived the equal and inalienable rights of all members of the human family.
People with an intellectual disability as parents: A new order of debate
There is a current example of what I mean about the current level of public discussion in Australia which is more directly relevant to people with a disability.
There have been a number of recent incidents where it is alleged that the death of a child has resulted from the inability of a parent with an intellectual disability to provide adequate care. In response to these incidents, there have been calls made in the news media for all people with an intellectual disability to be sterilised on reaching reproductive age, or have any children taken away for adoption or into State care.
As simple as that. Never mind that the last significant proponents of such ideas found themselves in the dock at the Nuremberg trials. A "final solution" indeed, with no need to consider difficult issues of ability to deal with pregnancy or the responsibilities of parenthood; no need to consider "politically correct" ideas like a right to physical integrity which might require alternatives to be explored before taking such a step without a person's free consent; no need to spend money on supporting families who need it when it could go towards tax cuts or election time bribes for we "normal" people. And how simple to have some other group, not like us, to blame. No need to spend time or moral effort or money on other causes of child abuse or neglect among "normal" people - domestic violence, alcohol abuse, family breakdown, the resources and supports available to parents. Just sterilise "them" all or take the children away.
The human rights principles incorporated in the legislation which the Commission administers, and which Australia has committed itself to respect, protect and promote, do not support or permit such a simplistic, heartless solution. Certainly they require protection of children from abuse and neglect. But they also require respect for the physical integrity of the person. They require equal protection of the law and freedom from discrimination. And (particularly in the Convention on the Rights of the Child but also in the International Covenant on Civil and Political Rights) they require respect for and protection of the family.
Recently the Commission was asked to intervene in Tribunal proceedings in which parents who both had an intellectual disability were attempting to change official decisions which had their two little boys living apart from their parents and from each other. The authorities concerned had decided that the parents were not able to care adequately for their children. We decided not to intervene because we believed the human rights arguments were already being put before the Tribunal adequately without our involvement. But I want to say more about this case today.
This case concerned a decision under ordinary child welfare legislation, not part of a separate or deliberately discriminatory program of removal of children. And I am not denying that in the circumstances it may have been in the best interests of the children concerned. But I wonder whether some of the evidence relied on to show that these parents could not care for their children would have been used the same way to keep parents without a disability from their children.
The young father was criticised, for example, in a report from a social worker, because he preferred to use disposable nappies rather than risk hurting the child with a safety pin. Well, does everyone else, "normal people", use only cloth nappies and safety pins on pain of losing care of their children?
The young mother was criticised because, when her baby's nappy needed changing during one of her rare access visits to the foster mother to whom her baby had been given, she regarded it as the foster mother's responsibility to deal with the nappy. Well, how would a "normal" parent feel and what would they do in the same situation?
Perhaps it is too simple a question to ask, but if it was possible to find the resources to take the children away and separate them even from each other, why was it not possible to find resources instead to support the parents in caring for their own children and keep the two little brothers together?
A community which values equality and inclusion, or one which really values its professed commitment to the family as fundamental to society, would be thinking about this type of question and doing something about it - even if at the expense of funding for other things that we obviously do value - like elite sports. A community content with simplistic notions of "us" and "them" will not want to think about this sort of situation or do anything practical to change it. What sort of Australia do we want to be, on this test?
Sterilisation
The Commission has intervened in a number of cases, including in the High Court, to argue for the application of relevant human rights principles regarding decisions to authorise various surgical operations described as sterilisation of girls and young women with various degrees of intellectual disability.
Our main point in these interventions has not been to argue that such operations should or should not occur in a particular case. But we have argued that such an operation requires compelling justification, including careful examination of available alternatives, and that a procedure should be established to ensure that this justification is present and this examination of alternatives occurs.
To that end we have supported the argument that the courts should be involved in authorising such operations. But it is now clear enough that the purposes we were seeking to advance by this have not been achieved.
The courts have not felt themselves able to set down clear guidelines, as we had argued they should, for the approval or the disallowance of such operations. Yet they have accepted the view that court approval is always required.
What has been the result? Well, Medicare payment statistics alone appear to indicate that the vast majority of such operations do not go anywhere near a court for approval, whatever the courts now say about their approval being required.
Some courts, to which proposed operations have been brought for approval, have admitted very frankly that they do not know why they are involved at all. Clearly, some parents seeking approval to proceed with such operations, not to speak of those parents who do not seek approval, have had the same view of the involvement of the legal system.
In my view there is considerable room for sympathy with the minority view expressed by Justice, now Chief Justice, Brennan when these issues were raised before the High Court: if an operation was genuinely therapeutic in its purpose, and a valid consent was given by or on behalf of the person, why should court approval be required? If the operation was not for the purpose of therapeutic benefit to the person, how could a court have jurisdiction, power or right to approve it?
It may be that we have been looking to the courts to perform roles of public choice which in truth require action by our Parliaments - whose business it is to make rather than state the law - and the executive government, which has the ability to dedicate money and human resources to social problems in a way that the courts do not.
The Commission is hoping to have discussions with the Attorney-General about these issues in the near future; about how to achieve a regime of principled decision making which is applied rather than largely ignored, and how to combine this with an allocation of resources which offers families more options and more support in pursuing them, rather than the law being seen only as offering a procedural ritual which is costly in time, money and grief but which does not alter outcomes significantly for the better.
It is, I hope, no disrespect to the Attorney to say that government may find it difficult to pursue these inevitably controversial issues, unless the community expresses support for such an undertaking and is prepared to support, even demand, the allocation of the necessary resources.
The place of disability on the public agenda
This bring me to concerns about the place, or lack of place, held by disability issues in public debate in Australia.
In debates about racism and racial tolerance, the arguments of economic and political self interest in our relations with our neighbours are now being raised alongside those of human rights and human decency. Salvation of the nation's purse, as well as its soul, seems to require a rededication to tolerance and decency, even though economic insecurity appears to be one of the factors which has fanned intolerance and fear.
It is far less obvious that perceived self interest will, of itself, pull this nation in the direction of inclusion, equality and respect for people with a disability.
Despite much excellent work both by community organisations and by government agencies, with themes like "Focus on Ability", the usual perception of people with a disability in public and political discussion - where there is any perception at all - appears to be as recipients or potential recipients of services, as sources of costly needs; not as contributors or potential contributors of skills and abilities, as equal participants in the economic, social, cultural and political life of our nation.
It often appears that disability issues struggle to get on the public agenda at all. Let me quote from a speech given by Commissioner Hastings, in response to writings by former Minister Gary Johns blaming the previous Federal Government's defeat on an allegedly excessive commitment to the interests of women and minorities - he having included disability in his list of minorities:
"I must say that I really felt people with a disability had arrived in public debate in Australia when we made it onto Gary Johns' list of minorities receiving too much attention. I wish him a long and happy retirement from public life."
The Human Rights and Equal Opportunity Commission and disability issues
Often overlooked or marginalised, disability is nonetheless an inherent part of the human experience and of the diversity of Australia's people.
The Human Rights and Equal Opportunity Commission has tried to ensure that its own work reflects this reality by ensuring that disability issues are at least firmly on its own human rights agenda.
In his 1989 Oration, Brian Burdekin outlined what he called the Commission's "Program for Action on Disability".
The major elements of that program were to be a discussion paper, consultation process and report on human rights and physical and intellectual disability, and the launch of a national inquiry on human rights and mental illness.
The mental illness inquiry was a massive undertaking for a relatively small organisation, and the Commission was even smaller then than it is now. The decision to conduct such an inquiry focussing on one area of disability, and separately from other processes of policy and public activity on disability, is not one that we would necessarily take now. That is not a criticism of the decisions made at the time. Connections between issues affecting people with different categories of disabilities have developed since 1989 not only in the Commission's own approach but in the structure and orientation of community and representative organisations, and in legislative, program and service delivery arrangements.
Commissioner Burdekin's announcement in his 1989 Oration contemplated a final report, based on consultations, submissions and research, which would provide government with a comprehensive picture of legislative and programmatic steps required to comply with human rights obligations in relation to people with a disability.
The Commission issued a draft report in 1991, on the basis of the "Program for Action", which was provided to the Federal Government and to a limited range of organisations including ACROD. We did not, however, go on to prepare and publicise a final report with recommendations for action by government across the full range of disability and human rights.
One reason was that it became clear that to do this in any meaningful way would be beyond the resources of a Commission already committed not only to a national inquiry on human rights and mental illness but also to a national inquiry on racist violence.
A more fundamental reason was a decision to concentrate resources on contributing to the development and passage of the Disability Discrimination Act. The Commission saw this as an opportunity for achieving a more effective means for people with a disability to achieve change themselves, rather than the Commission simply serving recommendations up to government and appealing for them to be implemented.
National Inquiries
Do not misunderstand me : I am the last person to disparage the national inquiry approach. It is a technique that has been used to good effect over the decade of the Commission's existence. I need only mention the Homeless Children Inquiry, the Racist Violence Inquiry and the Inquiry into Mental Illness to prove the point. The most recent is the current Inquiry into the Compulsory Removal of Aboriginal and Torres Strait Islander Children from their Families. For many people appearing before that Inquiry, it has provided a forum where no other existed, to express their grief and their grievance, and give the rest of the community some sense of the wrongs that have been done.
Of course, we expect that the Inquiry will achieve more than this, both in terms of redress and in terms of improved support for families and other measures.
The Disability Discrimination Act and comparable laws
To return to my main story: The development and passage of the Disability Discrimination Act offered the opportunity at a national level to take many issues of concern to people with a disability out of the ordinary run of politics where benefits are begged or bargained for, out of the "welfare" category into the area of rights recognised by statute. "L - A - W, law", as was once said by a former Prime Minister in another context.
Like all such legislation the DDA was the product of political processes of negotiation and compromise. But I think it is striking for the range of areas of life it deals with and for the limited extent of any restrictions it places on the obligation to eliminate discrimination.
The DDA was not, of course, the first Australian legislation in this area. Most States and Territories included disability discrimination in their anti-discrimination legislation before the passage of the DDA, in some cases many years before. Only Tasmania still lacks its own local legislative protection against disability discrimination, and State legislation may soon be in place there also. Apart from the symbolic effect of national legislation specifically about disability discrimination, the specific importance of the DDA is found in those matters involving the Commonwealth itself; those where other legislation is less adequate; and those where national processes or national leadership are important in resolving issues in a way that promotes equality among all Australians.
Some people have compared the DDA unfavourably to the United States' Americans with Disabilities Act as a less ambitious charter of rights. Certainly, the American Act has a level of detailed specification of rights and obligations which the DDA will lack, at least until the Disability Standards for which it provides are brought into effect. (I will say something more about Standards in a moment.) But in most other respects, where the Australian and United States laws are different it is the DDA which is broader in at least its potential application.
I am not saying that the DDA or any other discrimination law provides a comprehensive charter of human rights, still less that it guarantees the availability of the resources required for rights to be enjoyed in practice. But it does provide a strong and legally enforceable statement of public policy for the elimination of disability discrimination.
Discrimination laws are not just for show
George Bush put his signature to the Americans with Disabilities Act at a ceremony on the White House lawns before 3000 guests, most of them people with a disability. In doing so, he compared the barriers presented by discrimination against people with a disability to the Berlin Wall, which had fallen the previous year. He said: "And now I sign legislation which takes a sledgehammer to another wall, one which has, for too many generations, separated Americans with disabilities from the freedom they could glimpse, but not grasp. Once again, we rejoice as this barrier falls, proclaiming together we will not accept, we will not excuse, we will not tolerate discrimination in America".
That sort of stirring rhetoric is not perhaps a style that we feel comfortable in using in Australia. But perhaps we can do with a bit of stirring!!
Discrimination legislation is not an end or achievement in itself. On the part of the government it is a commitment to action, not a Boy Scout badge of virtue. On the part of people with a disability and organisations which represent and serve them, its provisions should be seen as tools to be used, not trophies to be kept in a locked glass case in case they get scratched when they are taken out. Human rights are there to be exercised and enjoyed.
Government commitment to the Disability Discrimination Act
As I have said, the adoption of the DDA represented a strong public policy commitment by the Commonwealth Government to equality for people with a disability.
I say this even though a number of the exemptions provided for in the Act concern matters of particular importance to the Commonwealth Government itself.
Migration
In particular, many of you would be aware of the exemption for actions "in relation to" the administration of the Migration Act. The Commission has consistently criticised this exemption as broader than can be justified by any legitimate public policy consideration. Surely some more narrowly tailored provision is possible which recognises the right of Government to control entry to Australia, and to weigh costs and benefits to the Australian community, without giving a blank cheque to discrimination. If, as happened recently, both Houses of Parliament can overwhelmingly reaffirm support for an immigration policy which is non discriminatory on grounds of race, is it too much to hope that discrimination on grounds of disability might at least be subject to some scrutiny?
Policy response to the Disability Discrimination Act: The Commonwealth disability strategy and action plans
The Commonwealth Disability Strategy, adopted by Cabinet decision in late 1994, was in part structured as a response to international human rights agendas, as set out in the United Nations Standard Rules for the Equalisation of Opportunities for Disabled Persons. But it is also presented as a policy response to the Commonwealth's own legislation, the DDA.
In part the Commonwealth Disability Strategy is a collection of specific program measures. But it is also intended as a recasting of government's approach to disability; that as people with a disability are found throughout the community and are indeed entitled to be full citizens and participants in our society, disability issues should be the concern not just of specialised agencies or welfare departments but of all areas of government.
In saying this, I am not disparaging the importance of specialised services addressing specialised needs. The point is that no agency which provides services to the public can be heard to say that its client group does not include people with a disability.
Given the purpose of the Commonwealth Disability Strategy as a policy response to the DDA, a key feature of the Strategy from the Commission's point of view is the decision that Commonwealth departments and agencies will lodge Action Plans under the DDA - their own plans on how to ensure that the Commonwealth's own agencies comply with the Commonwealth's own legislation.
The Strategy indicated that this would occur by 1997.
To date only one such plan has been lodged by a Commonwealth Department. This contrasts with a steady stream of Action Plans from education providers and local government authorities, and with plans beginning to come in from State government and private business enterprises.
This is not said in any spirit of self righteous condemnation. HREOC itself is only now finalising its own Action Plan. The Commission will be consulting with departments over the next few months to see if any further assistance or clarification we or others can provide would assist in getting results.
A development which does I think deserve sharper criticism is that at least one major department is seeking to be exempted from the commitment to submit an action plan.
As President of a small agency, I understand the view that time should be spent achieving substantive results rather than filling out endless reports for their own sake. But it is accountability for results, and commitment to achieving them, that concerns me, if even making a plan is regarded as too hard and even without having taken up the Commission's invitation to discuss how an effective plan might be made. A Plan can provide an important benchmark against which to measure achievement.
The Commission's work in this area has attempted to emphasise the need to set some priorities and get to work on achieving them, rather than following endless processes for their own sake or as a means of putting off decisions and action.
We tried to direct attention to some basic points:
- can people with a disability get in to the places where commonwealth laws and programs are administered?
- if they cannot now, what is being done to achieve equal access over time?
- what is being done to ensure access to the program where access to the particular building is not yet provided?
- can people with a disability communicate with the agency and receive information from it?
- will they be treated with equal respect and effectiveness by staff compared with all other users of the agency's services?
It surely cannot be too hard to make a plan to address these points and to identify what further points might need to be addressed in future revisions of an initial plan.
Disability standards and other current initiatives
Of course, there is more to eliminating discrimination than simply having a law which says that discrimination is unlawful. Particularly with disability discrimination, it is necessary to have more detailed specification of what discrimination is, and what equality would mean in real life circumstances, than is provided by the bare bones of the legislation. Provision in the DDA for the Attorney-General to make Disability Standards, and for the Commission to issue guidelines, recognises this.
I will not attempt a detailed account of work in these areas today. The Disability Discrimination Commissioner has spoken about them this week in Perth at a conference attended by many of you. She also reports regularly on this work in a newsletter which is widely distributed and appears to be widely read.
But a brief listing gives an idea of the range of work going on, in which the Commission is involved with community, government and industry representatives:
- draft Standards on equal access to public transport have been approved by Transport Ministers and are currently undergoing a Regulatory Impact Statement before the Attorney-General considers authorising them;
- draft Standards on employment discrimination have been distributed for public comment;
- a Taskforce established by Education Ministers is engaged with work towards Education Standards;
- an issues paper on possible Standards on equal access to Commonwealth Government Information and Communications has just been released;
- the Disability Discrimination Commissioner will be releasing draft guidelines on equal access to premises next month for public comment;
- a discussion paper prepared by the Australian Building Codes Board, with the co-operation of the Commission and others, on possible revisions to the access provisions of the Building Code of Australia, is currently out for public comment;
- the Commission has just released an issues paper on possible guidelines on accessibility of materials on the World Wide Web.
To this list of activities, others may soon be added.
Representation and participation
From this list, it will be obvious that there are many important processes running at once in relation to disability discrimination. Clearly, that places considerable demands on those involved, in particular on disability community organisations which inevitably lack the level of professional secretariat and policy development capacity available to government. The two rounds so far of public comment in the Employment Standards process have each been delayed by three months compared to the timetables originally agreed, to accommodate difficulties experienced by the disability community representatives involved.
The Commission will be talking with representative organisations and the Attorney-General's Department to try to work out ways of avoiding further delays in these processes in future, while ensuring effective participation by people with a disability. Some of this may depend on resources provided by government. Much of it may depend on the priority which organisations representing people with a disability are prepared to give to the substance being dealt with in these processes.
This is really the message I would leave you with. It is a case of all systems pointing to "GO". International standards are there, providing guidance and moral benchmarks. The prejudice and apathy in the wider community has been roundly challenged. Legislation like the DDA provides landmark statements of commitment and public policy. More importantly, that legislation, and the processes which it establishes, provide ways for people with a disability and their representatives to secure equality for themselves.
More than ever before in this country, equality is there for the taking, for those prepared to go and get it. I wish you well.
