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The Rights of People with Disabilities: Areas of Need for Increased Protection

The Rights of People with Disabilities: Areas of Need for Increased Protection

Appendices

Appendix 1: Guardianship legislation by State/Territory

New South Wales

  • Mental Health Act 1958 and Protected Estates Act 1983
  • Disability Services and Guardianship Act 1987

Victoria

  • Guardianship and Administration Board Act 1986

Western Australia

  • Mental Health Act 1962
  • Guardianship of the person legislation - possible introduction in Spring 89.

Queensland

  • Mental Health Services Act 1974- 87
  • Intellectually Handicapped Citizens Act 1986

Australia Capital Territory

  • Lunacy Act 1898 (NSW) (as it applies in the ACT)

South Australia

  • Mental Health Act 1977
  • Aged and Infirm Persons Property Act 1940

Tasmania

  • Mental Health Act 1963

Northern Territory

  • Mental Health Act 1979
  • Aged and Infirm Persons Property Act 1979
  • Adult Guardianship Act May 1988

Appendix II

Human Rights and Equal Opportunity Commission Act 1986 Schedule 4: Declaration on the Rights of Mentally Retarded Persons

The General Assembly,

Mindful of the pledge of the States Members of the United Nations under the Charter to take joint and separate action in cooperation with the Organization to promote higher standards of living, full employment and conditions of economic and social progress and development;

Reaffirming faith in human rights and fundamental freedoms and in the principles of peace, of the dignity and worth of the human person and of social justice proclaimed in the Charter;

Recalling the principles of the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Declaration of the Rights of the Child and the standards already set for social progress in the constitutions, conventions, recommendations and resolutions of the International

Labour Organisation, the United Nations Educational, Scientific and Cultural Organization, the World Health Organization, the United Nations Children's Fund and other organizations concerned;

Emphasizing that the Declaration on Social Progress and Development has proclaimed the necessity of protecting the rights and assuring the welfare and rehabilitation of the physically and mentally disadvantaged;

Bearing in mind the necessity of assisting mentally retarded persons to develop their abilities in various fields of activities and of promoting their integration as far as possible in normal life;

Aware that certain countries, at their present stage of development, can devote only limited efforts to this end;

Proclaims this Declaration on the Rights of Mentally Retarded Persons and calls for national and international action to ensure that it will be used as a common basis and frame of reference for the protection of these rights.

1. The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.

2. The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.

3. The mentally retarded person has a right to economic security and to a decent standard of living. He has a right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities.

4. Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lives should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life.

5. The mentally retarded person has a right to a qualified guardian when this is required to protect his personal well-being and interests.

6. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility.

7. Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities.

Schedule 5: Declaration on the Rights of Disabled Persons

The General Assembly,

Mindful of the pledge made by Member States, under the Charter of the United Nations, to take joint and separate action in cooperation with the Organization to promote higher standards of living, full employment and conditions of economic and social progress and development;

Reaffirming its faith in human rights and fundamental freedoms and in the principles of peace, of the dignity and worth of the human person and of social justice proclaimed in the Charter;

Recalling the principles of the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Declaration of the Rights of the Child and the Declaration on the Rights of Mentally Retarded Persons, as well as the standards already set for social progress in the constitutions, conventions, recommendations and resolutions of the International Labour Organization, the United Nations Educational, Scientific and Cultural Organization, the World Health Organization, the United Nations Children's Fund and other organizations concerned;

Recalling also Economic and Social Council resolution 1921 (LVIII) of 6 May 1975 on the prevention of disability and the rehabilitation of disabled persons;

Emphasizing that the Declaration on Social Progress and Development has proclaimed the necessity of protecting the rights and assuring the welfare and rehabilitation of the physically and mentally disadvantaged;

Bearing in mind the necessity of preventing physical and mental disabilities and of assisting disabled persons to develop their abilities in the most varied fields of activities and of promoting their integration as far as possible in normal life;

Aware that certain countries, at their present stage of development, can devote only limited efforts to this end;

Proclaims this Declaration on the Rights of Disabled Persons and calls for national and international action to ensure that it will be used as a common basis and frame of reference for the protection of these rights.

1. The term "disabled person" means any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities.

2. Disabled persons shall enjoy all the rights set forth in this Declaration. These rights shall be granted to all disabled persons without any exception whatsoever and without distinction or discrimination on the basis of race, colour, sex, language, religion, political or other opinions, national or social origin, state of wealth, birth or any other situation applying either to the disabled person himself or herself or to his or her family.

3. Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow-citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.

4. Disabled persons have the same civil and political rights as other human beings; paragraph 7 of the Declaration on the Rights of Mentally Retarded Persons applies to any possible limitation or suppression of those rights for mentally disabled persons.

5.Disabled persons are entitled to the measures designed to enable them to become as self-reliant as possible.

6. Disabled persons have the right to medical, psychological and functional treatment, including prosthetic and orthotic appliances, to medical and social rehabilitation, education, vocational training and rehabilitation, aid, counselling, placement services and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration.

7. Disabled persons have the right to economic and social security and to a decent level of living. They have the right, according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions.

8. Disabled persons are entitled to have their special needs taken into consideration at all stages of economic and social planning.

9. Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement which he or she may derive herefrom. If the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age.

10. Disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature.

11. Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property. If judicial proceedings are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account.

12. Organizations of disabled persons may be usefully consulted in all matters regarding the rights of disabled persons.

13. Disabled persons, their families and communities shall be fully informed, by all appropriate means, of the rights contained in this Declaration.

Appendix III The Federal Government's National Agenda for Women - Women with a disability

Women with a disability experience barriers to full participation in society because of attitudes and prejudices both about disability and about women.

Discrimination against women with a disability is often quite explicit with many being denied basic human and legal rights.

Women with a disability often accept society's image of them and have low self esteem. Assertiveness training, advocacy and women consumer representation on service organisation management are central tactics in the strategy of improving disabled women's sense of self worth.

Women with a disability have a low participation rate in employment. Approximately one third of disabled women are in paid employment, compared with 50 per cent of men with a disability.

Compensation records show that women receive an average of 23 per cent less money from compensation payouts, and that their cases take 13 per cent longer to process to completion.

Until 10 years ago women had little access to Government rehabilitation services whose focus had been on returning blue collar men to the paid workforce.

Eligibility criteria were altered but little publicised. In the past two years the Federal Government has increased the accessibility of rehabilitation services to women and participation rates are rising.

The Federal Government has recognised the under-use of rehabilitation services by women and over the past two years has actively developed new rehabilitation programs relevant to women. In moving away from centre-based medical rehabilitation towards regionalised social and vocational rehabilitation the Government's services are becoming more accessible to women.

Sexuality is a central issue for women with a disability. They have been vulnerable to rape, abuse and sexual harrassment in institutions and in the community.

Forced sterilisation and contraception have been amongst the worst features of institutionalisation for disabled women who have traditionally outnumbered men in institutional care.

When they face sexual abuse, women with disabilities are less likely to know about and have the confidence to seek assistance from women's refuges, rape crisis centres and women's health centres.

Mothers of children with a disability often nurture and completely care for those children into adulthood. The intensity of care required generally excludes these mothers from the paid workforce and their role in life often focuses on attending to the needs of their disabled children. This can place considerable stress on family relationships.

The valuable work women perform raising and supporting people with a disability must be recognised by society. Such women deserve respite from full responsibility and assistance in meeting the heavy demands of full-time caring. People with a disability are themselves seeking options other than care by relatives which sometimes forces them into emotionally and physically dependent relationships.

The Government has announced major initiatives to improve services to people with disabilities. They aim to free people with disabilities from institutional care as their only lifestyle choice. Women dominate as patients in institutions, so the new community-based initiatives will be of special importance to women.

Over the next three years about 360 people now in nursing homes will be provided with an attendant in their own homes. In addition1 325 places will be made available in the community to accommodate people with a disability over the next three years, including specially designed housing to allow community-based small scale accommodation.

Large specialist nursing homes that are now providing institutional care to people with disabilities will be assisted to scale down their institutions into smaller community-based supported accommodation and care services.

The Federal Government's Disability Services Program has been giving high priority to respite care to assist those women caring for people with a disability. The new Disability Services Act identifies respite care as one of the highest priority service types in the future.

With Federal Government encouragement, most State Governments are allocating funds under the Commonwealth-State Housing Agreement to priority housing and home modification for people with a disability.

In health, education and employment, the Federal Government is developing affirmative action programs to make mainstream services available to women with a disability.

Specific objectives for the year 2000

  • To improve the ability of women with a disability to make their own decisions about their lifestyles.
  • To provide equal access to rights, social systems and community services for people with a disability.
  • To improve access to income security, education, health, rehabilitation, employment, accommodation, independent living and other community services for women with a disability and for women caring for another or other people with a disability.

Action plan for the next 5 years

The Government plans to:

  • remove barriers to women with a disability enjoying individual rights and provide access to information about individual and consumer rights and available services, in cooperation with other Government and non-Government agencies as appropriate;
  • support improved access to assertiveness training;
  • seek to improve the image of women with a disability in the community through promotional campaigns and affirmative action strategies;
  • provide better access to community support services;
  • review social security assistance for those with disabilities to ensure that barriers to workforce participation are minimised;
  • encourage cooperative planning between the Commonwealth and State Governments in providing services to women with a disability;
  • encourage research into aids and appliances for incontinence and menstruation;
  • continue to provide access to special training to improve employment opportunities;
  • continue to ensure that women with disabilities have an equal opportunity to participate in Commonwealth public sector employment and training;
  • continue to promote occupational health and safety practices to prevent disability in cooperation with State Governments;
  • improve access to respite care for women caring for people with disabilities including access to child care services;
  • continue to improve access to specific disability services which allow people with disabilities to live free and independent lives; and
  • encourage public participation in planning services.

Appendix IV: Education - Legislation and Policies

  Legislation Policies
NSW

Education and Public Instruction Act 1987

  • no child has a legally enforcable
    right to education
  • a child can be exempted from education because of a temporary or permanent ailment
The Department's current policy is one of integrating the student into the mainstream system wherever possible and practicable where it is in the best interests of the child.
ACT

Education Ordinance 1937

ACT Schools Authority Ordinance 1976

  • every child should
    attend school
    unless there is
    good reason not to
Departmental policy is to educate all children together as far as practicable, but not to require children with special needs and others to be taught together in circumstances which would educationally disadvantage any of the students.
QLD

Education Act 1964-74

  • special education services may be provided
The Department supports a policy of integrating children with disabilities in regular schools where it is in the best interests of the student to do so.
NT

Education Act 1979

  • exemptions at the Minister's discretion

Departmental policy is, if it is at all possible, for a child to receive an appropriate education in a regular classroom. Only when this mainstream experience is demonstrated to be not in the best interests of the child would a less integrated
placement be sought. Where such an alternative
placement is warranted, a full range of support
services should be available.
SA

Education Act 1972

  • amendments to be introduced
    concerning
    compulsory
    attendance and the
    right to an
    education
Consultations in SA indicated that school principals have their own agenda that differs from that of the Department of Education, and results in some schools not facing the responsibility of integration.
WA

Education Act 1928

  • allows for exemptions based on infirmity

The Policy of Children in Need of Special Support aims to "enable handicapped children to receive an appropriate education in an integrated setting
in regular schools."

VIC

Education Act 1958

  • rights of all
    children to an
    education

Principals accept children for enrolment regardless of disability, but then suspend attendance pending allocation of additional resources.

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WA

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QLD

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