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The best DisCo in town: Towards implementation of the Convention on the Rights of Persons with Disabilities (2009)

Disability Disability Rights

The best DisCo in town: Towards implementation of the Convention on the Rights of Persons with Disabilities

Graeme Innes
Disability Discrimination Commissioner and
Race Discrimination Commissioner

Sydney, 19 August 2009

I acknowledge the Gadigal people of the Eora nation, traditional owners of the land on which we meet.

Thank you Commission President Cathy Branson, and other colleagues for being with us this evening.

I also acknowledge friends here from the academic, legal and disability communities.

A very big thank you, in particular, to our colleagues from the Australian Attorney-General's Department and theDepartment of Foreign Affairs and Trade. Mostly, of course, for their work with us, over many years, in advancing the human rights of people with disability, internationally and domestically. But also, for being (as far as I know) the first in the world to refer, officially, to the Convention on the Rights of Persons with Disabilities not by its unappealing acronym of CRPD, or as the Disability Convention, but as the "DisCo".

Back in the 70s, I didn't like disco music. My university band played different genres. So "Play that funky music, white boy" would have been very good, but wasted, advice for me.

It's been said that human rights thinking and institutions are often stuck in a 1960s agenda. There's a lot of truth to that - although for many people with disabilities, just the 1960s agenda of desegregation and basic civil rights would be a great leap forward, rather than a step back in time.

In 1981, the late and great Ian Dury, a man with a physical disability as a result of childhood polio, was commissioned by the UN to write a theme song for the International Year for People with Disability.

Instead of something worthy but forgettable, he gave them "I'm Spasticus - Spasticus Autisticus". The song builds on the moment in the film "Spartacus", where all the members of the defeated army of Roman slaves rise in turn to say "I'm Spartacus!" - to claim their humanity, and to reject oppression and exclusion. It was a raw look at the unglamorous sides of disability, and a triumphant affirmation that disability is a universal part of human experience; that disability is, in fact, about everyone, everywhere, everyday.

The U.N. could not cope with the song, and they rejected it. I can't remember what was used instead, which tells you something in itself.

But I do remember thinking that this failure, of imagination or courage or both, was not a big surprise. After all, the centrepiece human rights instruments - the Universal Declaration of Human Rights and the twin human rights Covenants of 1966 - fail to even mention disability among their long recitals of prohibited grounds of discrimination and required areas of protection.

As a matter of legal analysis, of course, it is correct to say that people with disability were always included in rights which applied to "all individuals" and prohibitions against "any discrimination". But failing to mention disability at all is not a great start towards realising human rights for people with disability in practice, or doing anything much towards making it happen.

It's also been said before that the 1960s Covenants suffered from the Cold War division of what were meant to be indivisible human rights, into categories of civil and political rights on the one hand, and economic social and cultural rights on the other.

One of the many good things about the DisCo is that it does not reproduce this division.

I've talked in a recent paper on our website, launching the report of the Rights Denied project on people with cognitive disabilities, about why and how this division of rights into categories has held back clear thinking, and effective action, on human rights, so I won't spend scarce time on the same points.

Suffice it to say that thinking about human rights only as civil and political rights, and civil and political rights only as rights to be let alone, lead easily to a view that respect for human rights in Australia doesn't require very big changes to very many things - that things are basically o.k.

The lived experience of people with disability and their families, however, is that things are not basically o.k.

The "Shut Out" report from the National Disability and Carer Council, which I helped launch earlier this month, confirms that.

One of my favourite quotes about human rights is from the great French jurist Rene Cassin, who said during the drafting of the Universal Declaration

... it would be deceiving the peoples of the world to let them think that a legal provision was all that was required ... when in fact an entire social structure had to be transformed.

The DisCo reflects this point far more clearly than previous human rights instruments, in setting out an agenda for action, and for translating human rights concepts into realities. Compare for example the long and detailed list of requirements for action in the general obligations clause of DisCo, Article 4, with the much shorter obligations clauses of the 1966 Covenants.

So, even if DisCo is a very 70s title for the first major human rights treaty of the new millennium, it is still a major advance on the 60s.

But, you may be wondering, why should we dance to this 70s disco stuff when, even without an international Convention on human rights and disability,

  • the 80s and 90s brought us State and Federal discrimination laws on disability,
  • and into the 2000s we have seen big advances achieved under the federal DDA in particular, and clearly there is still more that can be done using the DDA.

My answer is that, despite the successes of the DDA, it has some important limitations.

Some of those can be addressed by reforms to the DDA itself, including the ones which Jonathan will talk about, and by other possible reforms in future.

One limitation highlighted in the Shut Out report is the heavy reliance on disadvantaged people taking action themselves, through the complaint process. The report calls for more active monitoring and compliance, including a role for human rights and anti-discrimination bodies to initiate action themselves, just like the ACCC can in the consumer protection area. A self start power under the DDA would need to avoid the problem of the Commission complaining to itself. But this could be done by permitting the Commission, or Commissioner, to institute proceedings directly in court.

I don't want to be too negative about the DDA. Some big things have grown from some disability discrimination complaints. And there is more we can do. But it's very clear, confirmed in the Shut Out report, that we need a broader framework for action.

The DDA is framed as an anti-discrimination law, not as a more general human rights instrument. It's less far reaching than the DisCo, both in the subjects it deals with, and in how it deals with them.

The DDA, for example, deals with discrimination in access to services which are available, including services provided by government. It does not, however, create any obligation on government to provide services which do not exist at present, or to provide them at an adequate level to ensure the effective enjoyment of human rights.

Similarly, the DDA deals with discrimination in provision of goods. But it does not create any obligation to ensure that products on the market incorporate universal design features, so that they can be used by people who have a disability. We all joke about needing to get our children to program the DVD recorder for us. But it will be no joke as we get older to be denied independence in basic activities like cooking, simply because of consumer appliances with controls that we can't use.

That might not be the sort of subject you would expect a human rights instrument to deal with, but the DisCo does include obligations to promote availability of universally designed goods, services, equipment and facilities.

Another limitation of the DDA, particularly relevant to an ageing population, is how it deals - and doesn't deal - with housing. The DDA requires accessibility in premises open to the public, such as shops and hotels. It also covers public housing, under the definition of services. And refusal to rent or sell you a property because of your disability, is covered too. But what it doesn't do is ensure that there will be housing available to buy or rent, which is accessible to people who have a disability, or which is readily adaptable.

The DisCo provides a basis for work across Australia on this issue. Have a read of Article 9 on accessibility.

The same point can be made by comparing many other articles with the corresponding DDA provision. In each case, the DisCo includes the basic anti-discrimination obligation, but then specifies some of the positive measures needed to ensure equal and effective enjoyment of human rights.

Let me turn to the declaration by the Attorney of DisCo as a "relevant international instrument" under the Australian Human Rights Commission Act. Declaring the DisCo in this way formally constitutes the Commission as part of the framework for implementation and monitoring which Australia is committed to developing by article 33.

Clearly, we can only be part of this framework.

The Convention specifies that people with disability, must be closely involved in the monitoring process. The Commission already works closely with a range of disability organisations. But we need to consider what further development can occur here.

Implementation of the DisCo offers work for all areas, and all levels, of government working together - Federal, State, Territory and local - because people with disability are all of us, and everywhere. We have welcomed, therefore, the commitment by the Australian Government to develop a national disability strategy, based on the DisCo, and which includes all levels and areas of government. As part of this, we look forward to further discussions on other elements of the monitoring framework. Some issues here include:

  • monitoring roles at State and Territory level, including possible roles for our State counterparts;
  • roles for agencies with monitoring roles in specific areas, or general monitoring roles (such as ombudsmen and auditors general);
  • the relationship between monitoring under article 33 and reporting required under Article 35.    

The effect of declaring the DisCo is to include the rights which it recognises in the definition of human rights, for the purposes of the Commission's functions under section 11 of the Australian Human Rights Commission Act 1986 . I note in particular, the Commission may:

  • inquire into an act or practice that may be inconsistent with or contrary to the rights in the DisCo- and seek to settle such a matter through conciliation or otherwise to report to the Attorney-General on the inquiry
  • prepare guidelines for the avoidance of acts or practices inconsistent with rights recognised in the DisCo
  • promote an understanding and acceptance of the rights in the DisCo, including through undertaking research and educational programs
  • report to the Attorney-General as to the laws that should be made by the Commonwealth on matters relating to the DisCo
  • report to the Attorney-General as to the action that, in the opinion of the Commission, needs to be taken by Australia , in order to comply with the provisions of the DisCo.

You will see at once that this declaration potentially gives the Commission very extensive roles to perform, either at its own initiative or on request by our Minister, or both - particularly remembering that the reporting functions, and other programs, may relate not only to the substantive human rights in the Convention, but also to the list of obligations and measures which the Convention specifies for realisation of these rights.

These include not only the measures contained in the general obligations clause, Article 4, and Article 8 on accessibility, but also awareness raising obligations contained in article 9, and a range of measures found throughout the Convention in relation to particular rights.

The large scale of the potential roles involved is even clearer when we note that

  • the Commission's roles are not limited to monitoring legislation and making recommendations for law reform - the functions include reporting on action that needs to be taken more generally
  • the function of reporting on action required to be taken in relation to the DisCo, and other human rights instruments, is not restricted to action by the Commonwealth - it refers to action by " Australia ", which clearly involves the other levels of government as well.   

Not surprisingly, we have commenced discussions with the Commonwealth on the resourcing of the roles conferred on the Commission by the declaration of DisCo. Clearly, how far we are able to fulfill the large work program involved will depend on what resources are made available for the task.

Of course, issues are also brought to the Commission's attention through complaints being lodged. We are yet to see what impact DisCo related complaints may have - on the Commission's workload, and more substantively, as a means of implementation and monitoring of the DisCo in Australia .

It might be thought that complaints under the Australian Human Rights Commission Act 1986 would not be a large role for the Commission. Unlike the DDA, these complaints relate only to acts or practices of the Commonwealth, and many of the areas covered by the DisCo involve State and Territory or local government regulation and service provision, or action in the private sector.

However, the Australian Human Rights Commission Act 1986 , in section 3.3, defines an "act" as including "a refusal or failure to do an act". Perhaps even where another level of government is the one directly involved in breach of rights recognised under the DisCo, a complaint could be made under the Australian Human Rights Commission Act about failure by the Commonwealth to act to secure the right concerned itself, whether directly or in concert with another level of government.

Where a DDA complaint is available, people would in most cases choose that route instead, since the DDA provides the option of an enforceable remedy. But even where the DDA is available, there might be some cases where people with disability and their advocates choose to go to the DisCo.

Hopefully, with the development of a comprehensive National Disability Strategy, involving effective action by all areas and levels of government, and addressing all the rights and obligations contained in the DisCo, complaints on these lines will remain rare, or simply an interesting theoretical possibility.

The level of accountability for compliance by Australia with the DisCo has been enhanced further by Australia becoming a party to DisCo's Optional Protocol. This provides for complaints to the international Committee on the Rights of Persons with Disabilities. We must ensure that people with disabilities have effective access to this mechanism where necessary.

But of course complaints to an international body - or even to a national human rights commission - should only be a last resort or backup. In a democracy such as ours, Australians with disabilities, and their families, rightly look firstly to our own governments to fulfill the international commitments made on human rights. The point of such commitments is to stimulate and guide national implementation and accountability, not to substitute for it.

The commitment by the Australian Government to develop a National Disability Strategy, and the intention to base that Strategy on the Disability Convention, offers all Australian governments an opportunity to transform the unacceptable realities described in the Shut Out report. I, and my colleagues at the Commission, look forward to continuing to contribute to that work.

Thank you for the chance to speak with you today.

 

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