Using the Disability Convention for practical change

 

Graeme Innes

Australian Federation of Disability Organisation's conference

Melbourne 29 May 2009

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

Thank you for the chance to participate in this conference.

Some of us here were sitting in a stuffy conference room in the UN headquarters in New York when the Working Group completed its drafting of the convention. It was only stuffy because - in true UN style - we had exceeded our time limit for the session, the interpreters had gone home, and the air-conditioning had been turned off. But for most of us, these disadvantages paled in the excitement of what we had achieved. And that excitement was amplified as we watched the General Assembly confirm our work.

Some people foolishly suggested to me that our work in the UN was a good piece of work, but we now had a Convention so our work was complete. Of course, nothing could be further from the truth.

So it is pleasing to see that AFDO has joined the list of many other organisations around Australia running events to ensure that the Convention, having been signed and ratified by Australia, becomes a part of our domestic law and - more importantly - part of our domestic practise.

I've participated in some of these events, and seen serious contributors to the international work continuing to progress the issues in Australia- overseas contributors such as Professor Gerard Quinn who visited recently to share his experience and expertise; and Australians such as Phillip French, Kevin Cocks, Rosemary Kayess and others, who have continued the work in various forums in Australia.

Some of that work, available on the Human Rights Commission's website, will form the foundation for much of the work to be done by Government and community organisations in making the terms of the convention the reality in law and practise in this country.

It's regrettably common, both for opponents and supporters of enhanced human rights protection in Australia, to talk as if human rights instruments emanate from the UN as some form of world government, which issues dictates to previously sovereign nation states. When the Human Rights Committee issued a report on the breach of human rights involved in Tasmania's former criminal code provisions affecting same sex relationships, gay community activists had fun with this sort of misapprehension, putting out press releases welcoming the imminent arrival in Hobart of tall blond Canadians in blue helmets.

In the area of international peace and security, the UN Charter does provide for this sort of intervention--either with the consent of the States involved, but also against their wishes where the Security Council decides this is necessary. Most international law, though, including human rights law, is not like that.

Human rights treaties are not an exception to national sovereignty. They are an exercise of it, in which nations make commitments to the world, but more importantly they make commitments to their own peoples. And mostly, the peoples of the world look not to some supra-national authority, but to our own governments, to deliver domestically on the commitments they have made internationally:

• through the Parliaments we elect making laws,
• and through courts and tribunals and other bodies administering those laws,
• and through decisions being made by Ministers and by the public servants who answer to them.

Particularly for us in Australia, signing up to human rights commitments reflect values which we ourselves hold deeply, even if we do not always live up to them.

So what do we need to do to use the Convention for practical change?

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.

There are 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 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".

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

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 (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.

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 to say exactly this--except that he called me to say it first.

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

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 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.

Article 4 does call on parties to modify or abolish laws or regulations that discriminate against people with disability. However, 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. More relevant for present purposes, is the place of "legislative measures" among the appropriate measures to be taken for implementation under article 4(1)(a).

But I would not want to see any audit of legislation as a stand alone task. Rather, 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.

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 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, "money changes everything".

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

For Department of Health and Ageing- an initiative on health and people with disability similar to the closing the gap for indigenous people.

For Department of Innovation: The next steps after access to premises Standards.

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 made clear statements that strategies in this area will be based not on protecting particular industries 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.

Away from the vehicle industry, there are many less obvious examples that might also find a place on an innovation agenda. Recently we released a 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.

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.

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. 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 will find substantial work to do.

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.

So, to use the latest call for action, can we - as people with disabilities - just point our finger and go chk chk boom and have these changes implemented. Certainly not.

It's great that AFDO is facilitating these discussions. Because we will have to work collectively, and in partnership with Government at all levels, for the changes to occur.

We'll need to be strategic, harnessing support from people such as Bill Shorten and other allies, moving towards the easier challenges or low-hanging fruit, whilst ensuring that the larger implementation of rights issues are progressively realised. All of our lobbying and advocacy efforts will need to continue, but the Convention gives us a few sharper tools in the toolbox with which to continue them. This conference, and the other seminars to which I referred earlier, are the place where that work must continue.

Let's push for a National Disability Strategy which-

• sets a baseline;
• Recognises that implementation of the Convention is a whole of Government task;
• Contains realistic achievable goals across Government; and
• Involves the voice of people with disability in its development and implementation;

and go on from there.

I look forward to working with you on those achievements. Thank you.