RIGHTS DENIED

Towards a national agenda on abuse, neglect and exploitation of persons with cognitive disability in Australia

Disability Studies and Research Centre seminar

22 May 2009, Sydney

Graeme Innes AM

Human Rights Commissioner and

Disability Discrimination Commissioner

I begin by acknowledging the traditional owners of this place, the Gadigal people of the Eora nation.

I also want to thank Bill Shorten for being with us, and acknowledge the energy and leadership he is providing on disability issues within Government, both on specific issues and on the big picture cross government and inter-governmental issues.

As Bill said, I will be providing a bit more of a focus on the Convention on the Rights of Persons with Disabilities, rather than us covering exactly the same territory as each other today. But it is all very much connected; and I will be saying some more about the connections between the Convention and the National Disability Strategy and the National Human Rights Consultation processes as well as the implications of the Convention for the more specific subject on our agenda today.

I should also acknowledge the many people here from the academic and legal and disability communities, with whom we have been working in partnership for some time now around the Disability Convention, both in its development and now as we move towards implementation.

Some of you will recognise some of your own ideas in what I want to say today. I'd like to think this is not so much a matter of me shamelessly appropriating other people's ideas, as it is of us all continuing to work creatively together in advancing human rights for people with disability.

In particular I have to mention Phillip French, who in the summary paper circulated for this meeting continues a truly extraordinary contribution to human rights in Australia and internationally. I can only say to Phillip and his colleagues in this project that if you keep publishing such powerful ideas so clearly expressed, then what can you expect but that people will pinch them.

Can I also acknowledge Geoff Mulherin from the NSW Law and Justice Foundation, and congratulate the Foundation for sponsoring the crucially important research project which is at the heart of our agenda today.

Not everyone here would know, but Geoff in a previous role was a member of the United Nations peacekeeping forces between Iran and Iraq back in 1988.

I'm not just telling you that story so you can tell your friends you met today with a Nobel Peace Prize winner – although that is true too, since the UN peacekeeping forces were awarded the Peace Prize for 1988.

I mention it to set some contexts for our discussion of protection and promotion of human rights for people with disability in Australia .

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.

As I've mentioned on earlier occasions, 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 of course 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 like Bill and by the public servants who answer to them.

Particularly for us in Australia, signing up to human rights commitments does not amount to submitting ourselves to the wisdom and commands of the great and powerful Oz, or the great and powerful UN, in New York or Geneva.

These commitments reflect values which we ourselves hold deeply, even if we do not always live up to them.

I say “particularly in Australia” because of the number of Australian fingerprints which there are on the major human rights documents developed through the international system.

We all know that Australia 's Attorney-General and Minister for Foreign Affairs Dr Evatt was in the chair as President of the United Nations General Assembly when the Universal Declaration of Human Rights was adopted in 1948.

The Universal Declaration as we know had at least one unfortunate limitation. Although it proclaims human rights to be universal and indivisible, and although it refers to human rights for “all” people and without “any” discrimination, it omits to actually mention disability.

Less than full marks, then, for universality. But top of the class for indivisibility.

It might not be so well known, perhaps, that Australia played a leading role in ensuring that the Universal Declaration was not restricted to recognising civil and political rights.

Rights such as

• the right to form and join trade unions;
• the right to just and favourable conditions of work;
• the right to an adequate standard of living, including housing.

It was clear, obviously, to Dr Evatt and his colleagues in the 1940s that real rights are not restricted to those listed in, for example, the United States Bill of Rights, and that other human rights should also appear on the same list.

By the time that the Human Rights Covenants were adopted in 1966, however, the rights recognised in 1948 as indivisible were, well, divided.

Why does this matter, it might be asked, since pretty much all the rights listed in the Universal Declaration do appear in one or other of the Covenants, or both.

It matters because the division changes not just what rights we think about, but how we think about them.

For rights classed as economic social or cultural, the result is often for them to drop off the list altogether. The Australian Bill of Rights attempts of the 1970s and 1980s were based on the ICCPR alone, for example.

The division into two categories reflects and reinforces views along the following lines:

• civil and political rights are thought of as essentially negative rights for citizens to be left alone by government
• the main mechanism considered for achieving civil and political rights is the method of judicial review (with courts either striking down legislation in the manner established by the United States Supreme Court in in 1803 in Marbury v Madison , or at least communicating their disapproval back to the other branches of government in a less determinative manner, as with more recent “dialogue” models and as Thomas Jefferson thought should rather have happened in Marbury v Madison itself)
• economic, social and cultural rights are thought of as essentially aspirational in character, and considered as political claims rather than as legally enforceable or justiciable rights
• civil and political rights are thought of as being about laws (striking them down or at most making them) while economic, social and cultural rights are thought of as involving money.

It is easy to fall into accepting these sorts of distinctions. A quick look through the Covenants and a moment's thought, though, shows that these distinctions do not hold much water, even before we get to considering rights specifically in relation to disability.

I am sure it would be a surprise to Australia 's trade union movement, or the Australian government for that matter, to hear that the right to just and favourable conditions of work, for example, is not of a category appropriate for translation into legal rights capable of adjudication.

It would equally be a big surprise to Australia 's courts, and a pleasant surprise to their funding bodies, to find that the right to a fair trial does not involve political decisions to allocate large amounts of money.

These sorts of points have been made for a while now in human rights discussion, to defend the view that economic social and cultural rights, too, are real rights.

But there is at least as great a need to think again about how we look at civil and political rights.

The negative model of civil and political rights has been caricatured, but not I think all that unfairly, as representing the world view of a white middle class man who doesn't have a disability. As long as I can sit in my study and read, without the police being able to break in to ask what I am reading, and as long as the law can't allow them to break in at least without a warrant, things are basically o.k.

The lived experience of disability is, of course, that things are not basically o.k.

The disability Convention represents the results of thinking based on that lived experience, by some of the people in this room and by many thousands more around the world.

The summary report available to us for this meeting today shows the potential and need for using the Convention to take that thinking further.

It does this in a way that I actually find quite amazing, speaking as someone who has worked in human rights for decades. Time and again I found myself thinking, “of course: why had I not thought of it like that?”

One of my favourite quotes about human rights, and I don't apologise for using it again for those here who have heard it before, is from one of Geoff Mulherin's predecessors in winning the Nobel Peace Prize.

I am referring to 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.

Some of you have also heard me say before that the Convention on the Rights of Persons with Disabilities reflects this point far more clearly than previous human rights instruments, including in the range of measures called for in the general obligations clause of the Convention, Article 4.

Parties to the Convention not only have to review and reform any laws which discriminate on the basis of disability. They have to take all appropriate measures to, as Phillip puts it so well, respect, protect and fulfil human rights for people with disability. All appropriate measures include legislative action where necessary but not only that: the human rights of people with disability have to be taken into account in “all policies and programs”.

Forty years after Rene Cassin won his Nobel Prize, and twenty years after Geoff Mulherin won his, Bill Shorten won at least the lasting admiration of the Australian disability community, in announcing in 2008 that Australia would develop a National Disability Strategy based on the Convention.

Of course, the Commission and a number of other organisations represented here have had input to the process so far, and we are keenly looking forward to being involved in further steps.

I see today's event as having a very important contribution to make both to the National Disability Strategy and to the National Human Rights Consultation.

I very readily confess that the project summary we have here takes a number of critical issues far further forward than we managed to do in the Commission's initial submission to the NDS process last November; or in the material we have published in recent months to assist people in contributing to the National Human Rights Consultation.

Maybe I should feel more guilty about that than I do. But I think it shows again the power of the Disability Convention in moving beyond previous human rights instruments to engage with the realities of experience for people with disability in Australia .

We would all be aware here, I think, of the useful way that some Articles of the Convention take well known existing civil and political rights and unpack them and explicitly apply them to a disability context.

I'm thinking of the Articles dealing with accessibility in particular

• for example the way that Article 20 takes the right to liberty of the person and spells out some of the things that have to happen to ensure freedom of movement to people with disability,
• or the way Article 21 takes the right of freedom of expression and information and spells out requirements about access to communications technologies and accessible information.

What's striking to me about the project summary paper is how much it indicates there is to be done in some other areas where the substantive Convention article might seem, on first look, not to add much to the ICCPR formulation.

Also striking is the way the paper puts into practical terms what we mean by indivisibility of human rights, in explaining how for example prevention of degrading treatment for many people with disability cannot be separated from rights in relation to adequate and appropriate housing and independent living.

The Commission did note in our submission on the National Disability Strategy that there was a need for the Strategy to address these familiar ICCPR rights, areas, rather than full compliance with the rights concerned being able to be assumed simply because they had applied to Australia for nearly three decades under the ICCPR itself.

We were aware that the Convention provides a fairly long shopping list for reviews and reforms and tried to present in our submission fairly concise recommendations for action in areas such as

• the right to life
• protection in situations of risk
• equal recognition before the law
• access to justice
• liberty and security of the person
• freedom from degrading treatment, exploitation, violence and abuse .

I won't take your time now to go through those recommendations in more detail. Partly because the submission is available on our website for anyone who has not seen it and wishes to.

Mainly though because on many of these issues, where we confined ourselves to calling on Governments to include review of need for legislative actions and provision of improved services and supports, the Rights Denied project has taken the issue forward into at least the initial stages of that review.

This Convention – plus the work and insights of leading disability advocates - really has enabled work in the last 6 months which goes far beyond much of the general human rights work of the previous 60 years.

Everyone working in human rights, inside or outside government, I think has some serious catching up to do.