Towards ratification of the Convention on the Rights of Persons with Disabilities

Commissioner Graeme Innes
Parliament House, Hobart
20 August 2007

I acknowledge the traditional owners of the land on which we meet today, and thank the Tasmanian government for hosting this function.

Today promises to be the dawn of a new era - an era in which disabled people will no longer have to endure the discriminatory practices and attitudes that have been permitted to prevail for all too long,". Those are the words of Kofi Annan on 13 December 2006, the day that the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities.

On 30 March 2007 I was waxing lyrical to my computer screen in Sydney . My words were not quite the same, but they had equal passion and determination. at 1.40 am on that Saturday morning Sydney time, I was having a few glasses of wine and watching Australia line up with 80 other countries at the UN in New York, to sign that same Convention on the first day it was open for signature - via pod cast to my computer screen. It was Friday New York time.

Yes, its a bit of a tragic life I lead I admit. While my wife and daughter slept soundly in the early hours of Saturday morning I witnessed this major achievement thanks to modern technology. But rest assured I wasn't the only one - the director of the disability rights unit at HREOC revealed to me the following Monday morning that he had done just the same thing - although with a few gin and tonics instead. We all need to get out more.

But, you see, a few drinks were definitely in order because, as many of you will be aware, the development of this Convention has been some time coming. It took the international community several decades to decide to look into drafting a disability convention. Calls were first made for the UN to adopt a Convention recognising the rights of people with a disability 25 years ago with little success. Since the early 80s momentum and support slowly intensified.

In December 2001, the United Nations General Assembly finally, and with overwhelming support, decided to adopt a resolution to develop a disability convention. at that same meeting, an Ad Hoc Committee was formed.

Well, Rome wasn't built in a day, and the negotiation process itself spanned five years. This may sound to you like a long process, but in fact it was one of the quickest UN Treaties negotiated. and it was a revolutionary process, as it involved high level participation both by nation states and by civil society. In fact, the development of the Convention involved the highest level of participation by representatives of civil society (or organisations of people with disabilities) of any human rights convention, or indeed any other United Nations process, in history. And I should comment here that Australian disability organisations punched well above their weight in their contribution to the process. This certainly was of great value both to those of us on the Australian Government delegation, and to the process in general.

So on 30 March 2007, I watched with a sense of pride and excitement as the Disability Convention received the greatest number of signatures of any international convention on its first day. So far, and yes I am keeping a tally, 101 countries have signed. This is an overwhelming response, and an indication of the strong international support for preserving the rights of people with disabilities. This achievement is also particularly rewarding for Australia , as we took an active role in the negotiation process, and offered numerous constructive proposals on a wide variety of issues.

So here we are - the Convention, so long in gestation, has been signed by our Government and many others. But it's not time to break open that second bottle of wine just yet, as there is still work to be done, and important steps to take to bring the rights enshrined in this important Convention to life.

Let me now give you a brief overview of the Convention, and finish by talking about what needs to happen next. I want to reinforce how crucial it is that this convention is ratified and given full force in Australian law. For only after the Convention is ratified will people with a disability in Australia benefit from the Convention.

The Convention - what is it all about?

The Convention on the Rights of Persons with Disabilities is an international human rights convention which sets out the fundamental human rights of people with disability. It is made up of two documents, the Convention on the Rights of Persons with Disabilities, which contains the substantive human rights provisions. and the Optional Protocol to the Convention on the Rights of Persons with Disabilities, which is a more limited document that sets up an individual complaints procedure. Australia has signed the Convention but not the Optional Protocol.

The Convention sets out general and specific obligations for States, which detail the specific human rights and fundamental freedoms recognised in the Convention. These obligations aim to protect different types of rights: civil and political rights, economic, social and cultural rights, and rights to development.

The Convention contains traditional human rights concepts which are general protections found in other thematic human rights conventions. For example, it outlaws discrimination in all areas of life, including employment, education, health services, transportation and access to justice. But the Convention has added, modified and transformed traditional rights concepts to give them a more specific disability focus. It has added detailed disability-specific interpretations to some of these 'traditional' human rights concepts. The effect of this is to transform the protections against interference with rights into positive State obligations.

For example, the right to 'Freedom of expression and opinion and access to information' extends the protection against state interference with personal opinion and expression into the positive state obligation to provide public information in accessible formats, and to recognise sign languages, Braille, and augmentative and alternative communication.

The Convention has also modified and transformed other traditional human rights concepts in key respects. For example, it requires that public spaces and buildings be accessible to persons with disabilities. This right to 'accessibility' appears as a stand alone article, and as a cross-cutting principle underpinning the convention as a whole.

The Convention also provides a right to 'personal mobility'. This article requires countries to take effective measures to ensure that persons with disability enjoy the greatest possible personal mobility and independence, and to ensure that mobility aids, devices, assistive technologies and forms of live assistance and intermediaries necessary for personal mobility are of good quality, and are available at an affordable cost.

The right to access and personal mobility are entirely new formulations of human rights. Although these articles might be said to spring from the principle of non-discrimination, and the right to liberty of the person respectively, their formulation clearly transcends any previously existing human right.

The second half of the Convention is made up of implementation and monitoring articles, and operational articles. They set out what is required for implementation and monitoring of the Convention at both the national and international levels, and the basic arrangements for the administration of the Convention within the United Nations system.

Where to from here?

It is important to firstly consider the Convention in the context of Australian law which applies to people with disabilities. We have had for almost 15 years at a Federal level - as well as State and Territory laws - strong disability discrimination legislation. Our guardianship laws are forward-thinking, and take good account of the needs and rights of people with disabilities. And other laws enshrine appropriate treatment of people with disabilities. Our law in this area places us amongst the leading group of countries in the world.

Whilst the system is not perfect, whilst discrimination still occurs, and whilst service delivery may not always achieve some of the benchmarks set in the Convention, we have travelled a long way along the road. So our contribution to this process is as much one of giving as of taking.

Like all other international treaties, the Convention and its Optional Protocol are only legally binding on those countries that ratify them. By putting pen to paper, the Australian government has indicated only an intention to become a party of the Convention. So, in other words, until the Australian government ratifies the Convention, it will not form part of Australia 's international obligations.

Some of the more sceptical of you may be wondering whether the ratification of an international instrument would in real terms impact the day to day lives of people with a disability in Australia, anyway. Advocates in the disability sector, me included, have pursued the rights of people with a disability vigorously for decades and have made much progress despite the absence of a disability convention. And we will continue to pursue the rights of people with a disability with or without ratification. However, ratification is important.

The signing of the Convention by the Australian government was an important symbolic step for disability rights in Australia . Ratification of the Convention is more than a symbolic gesture. It is a legal step. It will make a commitment amongst our international colleagues which will reinforce the national laws we have in place. And, in order to ratify the convention, the Australian parliament has only to be satisfied that current State and Federal laws are compliant with the obligations in the Convention.

What needs to happen for the Australian government to ratify the Convention?

The Australian government has an established process for reaching a decision on whether or not to ratify an international convention. It prepares a National Interest Assessment which involves both the Federal and State governments. Before the Convention is ratified, the Federal Parliament must examine the implications of implementation in detail on Australian governments. This examination is likely to include some form of public consultation to which people with disabilities, and human rights organisations, may contribute.

The Federal Attorney General, Philip Ruddock has said that although there is strong in-principle support for the Convention within the Government, the ultimate decision on ratification and its timing will depend on the length of time it takes for, and the outcomes of, consultation with the States and Territories, and the community. His Department has already written to peak disability organisations initiating that process.

Consultations with States and Territories will take place according to the usual formally agreed processes. Experience shows that this could take some time to complete. The Attorney noted, however, at a workshop on the Convention and ratification run by the Australian Human Rights Commission, that there has already been extensive consultation with States and Territories in the development of the Australian Government contribution to the formulation of the Convention. States and Territories have been kept informed of progress through the Council of Australian Governments Standing Committee on Treaties, and as well were given the opportunity to contribute to the brief for the Australian delegation via their specific portfolio links with the Federal Government. so there should be no reason for delay.

Over the coming months, the Federal Government will be making a very important decision - to ratify or not to ratify. This period of time provides HREOC and the disability sector with a critical window of opportunity to influence key decision makers within both the Federal and State and Territory governments. The Federal Attorney has made a commitment to the sector that he will personally pursue a prompt decision, and has already listed the matter on the agenda of the meeting of the Standing Committee of Australian Attorneys General. I am also aware of one State-Territory Attorney who has called for prompt ratification. I call on other State and Territory Attorneys- General to make similar commitments, and unite to achieve ratification.

The Convention on the Rights of People with Disability recognises the dignity and human rights of people with disability, and such international recognition is necessary and long overdue; it completes the human rights jigsaw in respect of people with disability. The Convention is now finalised. This is not the time to re-visit the Convention's content. It is time to accept the outcome of the treaty negotiation. Failure to accept this outcome would embarrass Australia , which took a positive leadership role in the international negotiations process.

As Disability Discrimination Commissioner, my aim is for Australian ratification of the Convention by 3 December 2008, which is the International Day of People with a Disability. I hope that on or before that day, Australia has much to celebrate, and perhaps then we will open that second bottle of wine.

Thanks for the chance to talk with you tonight.