Education and the Convention on the Rights of Persons with Disabilities: Des English Memorial Lecture

Australian Association of Special Education Annual Conference Coogee 28 September 2007
Graeme Innes

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 a.m. 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 United Nations (UN)
in New York, to sign that same Convention on the first day it was open for
signature—via podcast to my computer screen. It was Friday New York time.

Yes, it’s 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, 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 1980s
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.

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, 107 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, talk about Article 24 on
education, and finish by talking about what needs to happen next.

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. 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. I will talk
in more detail about this in relation to education in a moment. But let’s start with a
few other examples first.

One example is that the right to ‘Freedom of expression and opinion and access to
information’ extends the traditional civil rights protection against state interference
with personal opinion and expression, into a 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 translates the concept of liberty of
movement into a requirement that public spaces and buildings be accessible to
persons with disabilities. This right to ‘accessibility’ appears both 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.

Although these articles might be said to spring from the principle of nondiscrimination,
and the right to liberty of the person respectively, their formulation
clearly transcends any previously existing human rights document.

I’m sure it will be clear to you that the Convention rights that I’ve already
discussed will be relevant to education, but I’ll now turn to the Article that deals
specifically with that topic.

I’m going to read through Article 24 on education in full,
with a few comments as I go.

Article 24—Education

1. States Parties (UN speak for countries) recognize the right of persons with disabilities
to education. With a view to realizing this right without discrimination and on the basis of
equal opportunity, States Parties shall ensure an inclusive education system at all levels,
and life long learning directed to:

• The full development of human potential and sense of dignity and self-worth, and the
  strengthening of respect for human rights, fundamental freedoms and human diversity;
• The development by persons with disabilities of their personality, talents and creativity,
  as well as their mental and physical abilities, to their fullest potential;
• Enabling persons with disabilities to participate effectively in a free society.

Pausing there for a moment—there seem to be two important and definite
obligations among the aspirational statements for the objectives of education.

First,
there is an obligation to ensure an inclusive education system at all levels. That
seems to me at least potentially broader than just a commitment to nondiscriminatory
access to whatever education system is already in place, important
though that is.

Second, the commitment to ensuring availability of life long learning
also has large potential importance.

Article 24 goes on:

2. In realizing this right, States Parties shall ensure that:

• Persons with disabilities are not excluded from the general education system on the basis
  of disability, and that children with disabilities are not excluded from free and
  compulsory primary education, or from secondary education, on the basis of disability;
• Persons with disabilities can access an inclusive, quality and free primary education
  and secondary education on an equal basis with others in the communities in which they
  live;
• Reasonable accommodation of the individual’s requirements is provided;
• Persons with disabilities receive the support required, within the general education
  system, to facilitate their effective education;
• Effective individualized support measures are provided in environments that maximize
  academic and social development, consistent with the goal of full inclusion.

3. States Parties shall enable persons with disabilities to learn life and social development
skills to facilitate their full and equal participation in education and as members of the
community. To this end, States Parties shall take appropriate measures, including:

• Facilitating the learning of Braille, alternative script, augmentative and alternative
  modes, means and formats of communication and orientation and mobility skills, and
  facilitating peer support and mentoring;
• Facilitating the learning of sign language and the promotion of the linguistic identity of
  the deaf community;
• Ensuring that the education of persons, and in particular children, who are blind, deaf or
  deafblind, is delivered in the most appropriate languages and modes and means of
  communication for the individual, and in environments which maximize academic and
  social development.

4. In order to help ensure the realization of this right, States Parties shall take appropriate
measures to employ teachers, including teachers with disabilities, who are qualified in
sign language and/or Braille, and to train professionals and staff who work at all levels of
education. Such training shall incorporate disability awareness and the use of appropriate
augmentative and alternative modes, means and formats of communication, educational
techniques and materials to support persons with disabilities.

5. States Parties shall ensure that persons with disabilities are able to access general
tertiary education, vocational training, adult education and lifelong learning without
discrimination and on an equal basis with others. To this end, States Parties shall ensure
that reasonable accommodation is provided to persons with disabilities.

The list of measures included in those paragraphs does not, of course amount to a
comprehensive statement of how to deliver inclusive education. But equally, it sets a
much more detailed and practical agenda than a simple statement of a right to
education without discrimination.

Until 2005, that simpler statement was all we had
in Australian discrimination law on the right to education for people with disability.

Since the introduction of the Disability Standards for Education, of course, we have
had a more detailed legal agenda to use. I won’t speak today in detail about the
Standards, not least because many of you have heard me talk about them before. But
I would say that even here in Australia, the Convention will give important new
benchmarks in assessing how we are going in achieving non-discriminatory and
inclusive education—including for the purposes of the review of the first five years of
the operation of the Standards which is due for 2010.

So, where to from here? Like all other international treaties, the Convention and
its Optional Protocol are only legally binding on those countries that ratify them.
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 consistent with 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.

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.
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.