Going for gold: Implications of the Convention on the Rights of Persons with Disabilities for Australian Law and Social Policy

 

Graeme Innes

Human Rights Indicators Seminar

Queensland Advocacy Incorporated

Brisbane

20th August, 2008

I begin by acknowledging the traditional owners of the land on which we meet.

I also acknowledge Ministers with us here today; Ambassador Don Mackay joining us from New Zealand by video link; and many friends and colleagues from the disability and human rights community.

I really want to congratulate Kevin Cocks and QAI, as the hosts of today's seminar, for their initiative in holding the event - and also for putting together what is just about an Olympic team of contributors on disability and human rights.

Today's program is perhaps a bit like a 400 metre relay. There is a bit of overlap between each runner and the next, and in fact several of us will end up covering the same ground, but hopefully with each making a distinctive contribution to the team performance.

Last March, Australia lined up with 80 other countries at the UN Headquarters in New York for an opening ceremony - the opening for signature of the Convention on the Rights of Persons with Disabilities .

The event didn't have the fireworks and drums and songs and dancing of the Olympics opening. And I'm not sure that synchronised signing is going to make it as an Olympic sport any time soon. But some of us stayed up to watch on the internet anyway, as Ambassador Robert Hill entered the stadium carrying the pen for Australia at 1.54 a.m.

Ambassador Hill, as many here will recall, had previously been a Minister in a Government which had started out frankly sceptical about the benefits of developing a specific Convention on human rights and disability. To begin with, the former Government argued instead for an approach of enhancing the profile of disability in the implementation of existing human rights instruments.

In itself that remains a worthwhile goal. The core human rights instruments – the Universal Declaration of Human Rights and the two Covenants – refer to human rights for “all” people and without “any” discrimination. So they do apply to people with disability- even though they managed not to actually mention disability. I hope that the existence of the Convention, including the monitoring Committee soon to be established, will serve to energise the pre-existing human rights machinery on disability issues as well.

As we know, the clear consensus that emerged internationally and among disability advocates in our own part of the world was that a specific Convention on disability and human rights was required - to give effect to the universality that didn't fully speak its name in 1948 with the Universal Declaration or in 1966 with the Covenants.

Although Australia joined that consensus late, I think we can claim to have made a substantial contribution to the development of the Convention. As Kieren Perkins showed a couple of Olympics back, you can qualify last and still come storming home in the final. I'm proud to have been part of the Australian delegation. I'm even more proud of the contributions made by the Australian disability community representatives involved, some of them here with us today, both in the development of the Convention and in sustaining momentum beyond that for early ratification.

We didn't quite match Jamaica - which sprinted to ratify on day one while the rest of us were still marching into the stadium. But when Australia ratified last month, it did set an Australian record (as far as I know) for commitment to a major human rights instrument: 16 months, compared to 14 years for the Covenant on Civil and Political Rights, or 10 years for the Convention on the Elimination of All Forms of Racial Discrimination, or 5 years for the Convention on the Elimination of All Forms of Discrimination Against Women.

I commend Ministers and their Departments for the work and commitment that made this happen. Praise is due too to the members of the Parliament's Joint Standing Committee on Treaties. The Committee came up with the parliamentary equivalent of a laser-stitched swimsuit, or maybe a winged keel, when just 15 days after opening their inquiry on the Convention they issued a report, two paragraphs long, basically saying

1. Ratify now;
2. We'll tell you more later in another report about implementation.

That word, implementation, brings me back to the real point of what I want to say today, and what I think today's seminar is really about.

Despite all the excitement and achievement in our work on the Convention so far, we all know that it's far too soon to be awarding ourselves medals. In many ways what we have done is get ourselves to the start line. Actually I should say start lines, since the provisions of the Convention require action in so many areas.

The gold medals will have been truly earned when the rights recognised in the Convention are truly and fully a reality in daily life for every person in Australia who has a disability now or in the future - and when Australia is contributing to the utmost of our ability towards international co-operation for the realisation of these rights in our region and around the world.

Silver medals perhaps might be awarded when we can see real progress in the implementation of each of the provisions of the Convention.

Bronze medals perhaps might be contemplated when we have made a real start – when we have strategies involving every area and level of government that needs to be involved, and reaching beyond that to the broader Australian society, to achieve the implementation of the rights recognised by the Convention.

The Convention gives us a set of tools, not a trophy to be taken out every few years to be admired and then put safely away again.

Ratification of this Convention is not a statement that Australia already fully complies with the Convention in practice. Rather the Convention presents an agenda for action and gives new opportunities for accountability for how well rights are respected.

In evidence to the second phase of the inquiry by the Joint Standing Committee on Treaties I emphasised the same point (as did representatives of a number of disability advocacy organisations): that while Australian laws were sufficiently consistent with the Convention to permit ratification, this was far from meaning that the Convention had already been implemented - and that for example there were clear areas of need for very substantial increases in the level of services and supports available to people with disability and their families.

There is a great quote from the great Rene Cassin, one of the drafters of the Universal Declaration of Human Rights, who pointed out during the drafting that

"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".

I think the Convention on the Rights of Persons with Disabilities reflects an appreciation of this point far more clearly than previous human rights instruments.

No legal instrument, and certainly no instrument that emerges from complex international negotiations, will be perfect. But I would not hesitate to proclaim this Convention “the best human rights instrument ever” - because it makes plainer that ratification is a commitment to a program for action than any major human rights treaty has done before.

For example, in article 2 of the Covenant on Civil and Political Rights, while we find obligations to respect and ensure the rights recognised, the strategy for how that Covenant is to play its part in “transforming an entire social structure” is not spelt out beyond the statement that parties are “to adopt such legislative or other measures as may be necessary”.

In the obligations clause of the Convention on the Rights of Persons with Disabilities (Article 4) just clause (1)(a) takes us as far or further than that, before we even consider clauses (b) through (i) or the rest of the Article.

I know you might say that I'm easily pleased, as someone who gets excited by synchronised signing, but there is a lot to be inspired and activated by in Article 4.

Article 4.1(c) says parties will

take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes.

Note, that's not just “in all policies and programmes that are expressly directed to disability”, its “ all policies and programmes “.

It might be said that this is a call for a comprehensive national disability strategy based on the Convention. In fact I was about to call Bill Shorten just after his appointment as Parliamentary Secretary for disability to say exactly this – except that he called me to say it first.

I'll come back to the National Disability Strategy as a vehicle for implementation of the Convention in a moment.

A few of the other aspects of Article 4 to highlight first.

Parties undertake to take measures for the progressive realisation of economic, social and cultural rights “to the maximum of their available resources”. That might be argued to involve a couple of limitations on achieving rights: progressive realisation rather than immediate compliance, and subject to available resources. But as people like Philip Alston and Andrew Byrnes have been pointing out for a while now, this doesn't mean economic social and cultural rights are not real rights.

Progressive realisation gives real meaning and purpose to planning and reporting functions about human rights because it means you comply by showing how you are making progress over time. In turn, this could be seen as linked with the commitment under article 31 to collect appropriate information to implement the Convention.

Realisation “to the maximum of available resources” also sounds more like a positive commitment than a let-out clause to me: at least in a country like Australia . I can't see we could argue with a straight face that we are applying the maximum of available resources with the level of unmet needs that exist at present in Australia – for resources and supports in education or employment or accommodation, or access to assistive equipment or other personal support needs, just to start with.

My topic today does ask me to discuss implications of the Convention for Australian law, as well as social policy.

Article 4 does call on parties to modify or abolish laws or regulations that discriminate against people with disability. In my view though, and in the view presented in the National Interest Analysis, that task is largely done for the moment at least.

Ratification did involve a decision that at present there were no laws directly inconsistent with the Convention. Of course, new laws will need to be measured against the Convention, and there may be a need into the future for further review of laws, since as the Convention acknowledges disability is an evolving concept and our understanding of the place of disability in law and social policy can also be expected to evolve.

More relevant for present purposes, I think, is the place of “legislative measures” among the appropriate measures to be taken for implementation under article 4(1)(a).

I know that some of my colleagues from civil society have called for an audit of legislation as one of the early measures for implementation of the Convention. I don't want to wholly disagree - but I do want to suggest a different flavour to what might at first sight be suggested by the idea of an audit of legislation.

I would not want to see any audit of legislation as a stand alone task, done principally by Attorney-General's Departments or human rights agencies.

Rather I believe that, consistent with Article 4, legislative measures should be considered amongst more general consideration in each area and level of government of what measures are appropriate for implementation.

The Commission's own National Inquiry on employment and disability certainly called for legislative improvements to make clearer the obligation of employers to provide reasonable adjustments. The same recommendation of course was made over two and a half years ago by the Productivity Commission and we look forward to the introduction of implementing legislation this session as the Attorney has recently announced.

But our inquiry saw legislation as only part and in fact as a relatively small part of the national disability employment strategy which we recommended and which the government is now working towards.

I think there is sometimes a temptation for lawyers to overestimate the importance of law at the expense of overlooking other tools for change.

In the Treaties Committee hearing we were asked what changes to the Disability Standards for Education were needed to ensure equal realisation of the right to education for children and young people with disability. Our response was that, although the five year review of the Standards due in another couple of years might indicate areas for improvement, most of the issues coming to the Commission in the education area involved a combination of attitudes, access to information on what to do, and a lack of sufficient resources, or, to quote Cyndi Lauper, as we did, “money changes everything”. You could read my title today, “going for gold”, the same way.

Even within the law and justice area, I suspect that better realisation of human rights for people with disability will be more about programs, policies, and resources than legislative change.

I am thinking for example of the position of people with mental illness or intellectual disability in prisons without facilities to respond to their needs, where what courts and others responsible appear to lack is not the power or the duty to make appropriate decisions but the lack of facilities in practice to give effect to what they know to be right.

Article 4 of the Convention makes clear that human rights is not only a job for human rights agencies, any more than disability rights are only a job for disability service providers. The Commission's own disability workplan for this year is already framed around the Convention but, as I've already said, I think implementation of the Convention will present issues and agendas for every area and level of government.

Here are a few examples:

For the Department of Climate change: will measures for smarter buildings be co-ordinated with other elements of sustainability, like building for an ageing population which will include more and more people with disability?

For Treasury: will we see costs of participation including issues like effective marginal tax rates addressed, possibly through the Henry tax review; or the work being done by Jeff Harmer on transfer payments; or possibly a further study by the Productivity Commission on how to promote productive participation for people with disability?

For the Department of Health and Ageing: It has of course been exciting for the Commission to be involved this year in commitments towards closing the gap between indigenous and other Australians on health outcomes and access to services. Fairly clearly though a similarly initiative on health and people with disability is justified by the evidence and would respond to the requirements of the Convention in this area.

For the Department of Innovation: As you all know, the Minister for Innovation and the Attorney-General are working to finalise development of a disability standard on access to premises. I don't think though that this will be anywhere near the end of work for Innovation in leading work to implement the Convention.

Under Article 4 of the Convention, parties promise to

• undertake or promote research and development of universally designed goods, services, equipment and facilities,… to promote their availability and use, and to promote universal design in the development of standards and guidelines; and

• to undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost.

I'd suggest that there are very clear and substantial agendas right there for a Government and Prime Minister who want us to continue to be a country which makes things, and who have I think made clear statements that strategies in this area will be based not on protecting particular industries from the rest of us choosing to prefer overseas products, but on promoting innovation and ensuring its benefits are shared as widely as possible.

To take a topical example: In considering Mr Bracks' review of automotive industry assistance measures I hope the Government will be giving due consideration to possibilities for promoting development and availability of vehicles which are accessible as well as green.

I know that possibilities for development of a universal taxi are being put forward in this context. I'm less sure whether assistance measures proposed might also support innovation to achieve improved accessibility in other public transport vehicles, where we have seen great progress but some continuing needs for technical development on issues like safe carriage of people using mobility aids.

Away from the vehicle industry there are many less obvious examples that might also find a place on an innovation agenda. Last year I released a small discussion paper on accessibility of consumer appliances to people with disability and older Australians. We frankly struggled to find who might be able to take those issues forward. It's another issue that might need work from a range of areas and levels of government – such as innovation and consumer affairs departments - within a cross-government framework and one that draws in the industry players involved.

Much of the provision of assistive devices and accessible technologies in our country occurs through a combination of cottage industry and a raft of inconsistent government programs, with plenty of holes in the raft. Here too is a role for leadership to get more out of all the expertise we have out there.

Governments can provide leadership to industry in various ways of course: by developing regulations and standards; by providing financial assistance on appropriate conditions; but also by the example they set.

In my view appropriate responses to Article 4 would include

• Adoption of an accessible procurement policy by the Commonwealth
• Review by each Commonwealth agency of its own operations to ensure compliance with disability access requirements, including considering procedures for ensuring accessibility in procurement of facilities and equipment and in contracted services
• Promotion of such a policy and review process to other levels of government, education authorities and private sector organisations
• Commonwealth action to lead development of networks for sharing of information on accessible technologies and equipment

Mention of the private sector leads me very briefly to mention how important I think the initiative was by Mr Shorten to establish the Disability Investment Group to look at potential private sector roles in enhancing human rights outcomes for people with disability. I think there will be important conversations for many of us to continue with that group in advancing implementation of the Convention.

I've mentioned action at all levels of government a couple of times. I think the Convention and the development of a national disability strategy offer great opportunities to put into practice what our governments have been saying recently about revitalising the federation.

There is clearly a need for better co-ordination of policy and service delivery as it relates to ensuring human rights in practice for people with disabilities

It seems to me that we could start by expecting every Ministerial Council to look at developing a disability agenda. For a very few the agenda might be quite short and specific but most I think will find substantial work to do, and not only disability and community services ministers as I have said.

To give just one example there is clearly work for housing ministers and ministers responsible for planning to do on issues of universal or lifetime housing. People's homes are often their major asset once they retire. So it is a particularly bitter irony that much of the Australian housing stock, even including new construction, is not accessible or adaptable to meet disability needs when the longer we live the more likely it is each of us as individuals and as family members will experience disability.

Disability, and the Convention on the Rights of Persons with Disabilities, really is about all of us and everything.

I'm very conscious that despite being asked to provide an overview there are many of the substantive provisions of the Convention I have not even mentioned. There are more challenging topics in this Convention than there are events at the Olympics and the TV coverage never shows us all our favourite events.

In case you've already had enough of the Olympics metaphor today, let me say it could have been worse. Certain HREOC officers I won't name wanted me to give my presentation on the Convention to the Federal Parliament's Joint Standing Committee on Treaties, in the style of the Crazy Warehouse Guy from the Chaser. I was a bit too nervous of the possible penalties for contempt of Parliament to do it that day - but perhaps I can finish with a small sample here:

We've got civil rights! Political rights!.

Economic, social, cultural rights!

Rights to be progressively implemented - to the Maximum of Available Resources!

Rights restated! Rights translated! Applied to disability contexts, in easy practical terms!

National monitoring and implementation!

International monitoring! And co-operation!.

Disability discrimination is never to be repeated!

And inequality has to go - out the door!