National Disability Strategies as tools for implementing the Convention on the Rights of Persons with Disabilities

Graeme Innes, 10 December 2010

Centre for disability law and policy

University College Galway, Ireland: delivered via video link

Summary: Australia’s National Disability Strategy provides a framework for implementation of the Convention on the Rights of Persons and for means for enhancing reporting under the Convention. Further development and implementation of the NDS should be informed by the Committee’s reporting guidelines and by the dialogue between the Australian Government and the Committee in considering Australia’s reports. Some enhancements to the reporting guidelines may also be helpful.

In November 2009 Australia’s Prime Minister announced the development of a National Disability Strategy as a central mechanism for implementation of the Convention on the Rights of Persons with Disabilities in Australia.

As the Prime Minister said

• People with disability in Australia are too often left without the basic services and equipment they need; denied the chance to work and study or take advantage of opportunities to live their life to its full potential; discriminated against, shut out and isolated; 

• And people with disability and their families want Australia to change – they want an Australia which is inclusive, enabling and which provides equality and the opportunity for each person to fulfil their potential .

Surprisingly, the Disability Convention will in fact be the first of the major international instruments which has actually had a comprehensive national implementation strategy in Australia.

Surprising because it is more usual for disability to be left out in human rights discussions than to lead the way.

As we know, the centrepiece human rights instruments - the Universal Declaration of Human Rights and the twin human rights Covenants of 1966 - fail to even mention disability among their long recitals of prohibited grounds of discrimination and required areas of protection.

It’s also been said before that the 1960s Covenants suffered from the Cold War division of what were meant to be indivisible human rights, into categories of civil and political rights on the one hand, and economic social and cultural rights on the other.

One of the many good things about the Disability Convention is that it breaks down this division which I think changes not just what rights we think about, but how we think about them. 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
• 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.

This sort of negative model of human rights has been criticised 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 at this meeting today, and by many thousands more around the world.

The Convention on the Rights of Persons with Disabilities, as the newest of the major human rights instruments, was also drafted with the benefit of previous experience in seeking to promote respect, protection and fulfilment of human rights, including experience in the limitations of previous instruments as a basis for national implementation efforts.

This experience extends over a substantial period: the Disability Convention after all is

• 42 years more recent than the twin Covenants;
• 43 years younger than the Convention on the Elimination of All Forms of Racial Discrimination;
• 29 years younger than the Convention on the Elimination of All Forms of Discrimination Against Women; and
• 19 years younger even than the Convention on the Rights of the Child.

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 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
• in the way substantive articles like article 9 on accessibility or article 24 on education present in quite some detail a practical agenda for implementing rights instead of simply proclaiming rights in principle
• in the provisions requiring measures for ongoing implementation and monitoring.

The Disability Convention makes far clearer than previous instruments that promoting respect, protection and fulfilment of human rights should not be regarded as confined to ensuring formal compliance of legal measures at the point of ratification.

Rather, human rights instruments should be seen as providing a basis for ongoing policy measures, and require monitoring of progress towards outcomes.

The reporting guidelines adopted by the Committee on the Rights of Persons with Disabilities reflect this same point.

States should consider the reporting process, including the process of preparation of their reports, not only as a means to ensure compliance with their international obligations, but also as an opportunity to take stock of the state of human rights protection within their jurisdiction for the purpose of more efficient policy planning and implementation of the Convention. The report preparation process thus offers an occasion for each State Party to:

(a)        Conduct a comprehensive review of the measures it has taken to harmonize national law and policy with the provisions of the relevant international human rights treaties to which it is a party;

(b)        Monitor progress made in promoting the enjoyment of the rights set forth in the treaties in the context of the promotion of human rights in general;

(c)        Identify problems and shortcomings in its approach to the implementation of the treaties;

(d)       Plan and develop appropriate policies to achieve these goals.

Along with the Convention itself I think that these reporting guidelines are among the most practical and useful United Nations documents ever issued. I would be interested though to hear the views of other participants in this meeting on areas where the guidelines could be even better.

I have a particular view that the emphasis on the obligations in article 4 deserves to be strengthened, because that Article  contains so much of what takes the Disability Convention beyond previous instruments for achieving human rights in reality.

Australia’s Initial Report under article 35 of the Convention was submitted on 3 December which is of course the International Day for people with disability.

I would describe the Australian Initial Report as a good first try rather than as the last word in reporting. In saying that I do not  mean any disrespect to my colleagues in Government who prepared it.

Although the draft report fairly clearly does not contain all of the information requested in the Committee’s reporting guidelines, I think nonetheless that the report is entitled to state as it does that “This report has been prepared in accordance with the Committee’s Guidelines”.

It’s a bit like saying a student is tracking well against curriculum objectives; has handed in a good first term paper; shows reasonable awareness of areas where substantial improvement is needed; has made good progress in working with others; and has good prospects of performing well at the end of the year. You don’t say they have failed just because it would be better if they had already passed the course.

The main reason I take a fairly positive view of Australia’s Initial Report is that I see it as taking up the invitation to approach reporting as part of a forward looking policy process, rather than only as a process of reporting completed actions. It notes that

The Australian and State and Territory and Local Governments have developed a draft National Disability Strategy (NDS).  The Prime Minister released the draft NDS to the public on 29 July 2010 with the commitment to take it to the Council of Australian Governments at the earliest opportunity.  The NDS will help Australia to fulfil its obligations under the Convention by establishing a framework to promote, protect and monitor the implementation of the Convention, as required under article 33(2). 

… The NDS aims to address the barriers that are faced by Australians with disabilities and promote social inclusion. The NDS will ensure that the principles underpinning the Convention are incorporated into policies and programs affecting persons with disabilities, their families and carers.  It is intended to be a living document refreshed over its ten year life span against which Australians can assess progress for persons with disabilities, and will inform Australia’s future reporting under the Convention.

Thus a national disability strategy is seen as a means for implementation of the Convention, and also as a means for enhancing reporting under the Convention.

For these objectives to be met effectively and efficiently it appears appropriate that the relationship between the NDS and the Convention reporting process should be a two way one.

That is, the further development and implementation of the NDS should be informed by the Committee’s reporting guidelines and by the dialogue between the Australian Government and the Committee in considering Australia’s reports.

Having regard to article 33 of the Convention this dialogue clearly should also include organisations representing people with disability and the independent national Human Rights Commission. This approach would be consistent with the consultative and participatory approach that Australian governments took to Australia’s contributions to the development of the Convention itself.

The Commission and disability representatives were involved in the development of the Government’s position for the United Nations Working Group negotiations – with disability organisations receiving financial support for this purpose - and were also included in the government delegation

Australia’s Prime Minister Gillard released the National Disability Strategy as a policy announcement during the recent election campaign..

The Strategy is oddly difficult to locate online if you do not already know where it is: as of last week at least it still appeared only on the Australian Labour Party election campaign website rather than on the Australian Government’s site, despite the election being well and truly over.

The document itself made very clear though that it was not simply a document from one party at one level of government produced for election campaign purposes. Its development has involved all levels of government with input from the Commission and from disability representative, advisory and advocacy organisations

Australia’s initial report under the Convention states:

The purposes of the NDS are to:

• set out a high-level policy framework to give coherence and guidance to the activities of  Australian governments across mainstream and disability-specific areas of public policy
• drive improved performance of mainstream services for persons with disabilities, and
• provide visibility for the needs of persons with disabilities and ensure they are included when developing policy or implementing initiatives that impact upon them.

The submission which the Australian Human Rights Commission put in to the Commonwealth's initial process for consideration of a National Disability Strategy back in 2008 recognised that such a Strategy, while able to contain some immediate measures, would  in large part necessarily set a framework for further processes of policy and program development, implementation and monitoring.

So it would not be very fair for me to criticise Australia’s NDS for taking the approach of providing a high level framework. While it identifies a range of areas for future action, I think it is fair to say that most of these are correctly described as broad areas for action rather than as specific and measurable actions and targets.

But very importantly there is also a commitment to develop a more detailed implementation plan.

People with disability and other key stakeholders are to be involved in this including in setting priorities and in finalising draft indicators for monitoring of progress.

The implementation plan including timelines is to be included in a report back to the Council of Australian Governments at the 12 month point.

Community and disability services Ministers are indicated as having lead responsibility.

The draft emphasises however that it is not confined to areas of government concerned with specialist disability services, but aims to improve the way all mainstream systems and services relate to disability. Roles for Education and Health Ministers are specifically mentioned in the Strategy with indications that other ministers should act as champions on other issues.

In our 2008 submission the Commission went somewhat further than this. We recommended that the National Disability Strategy should include a commitment for each Ministerial Council to develop disability strategies based on the Convention.

We also recommended that the National Disability Strategy should include a commitment from each government for each of its departments and agencies to develop a disability strategy based on the Convention, in relation to

• relevant aspects of each Department and agency's specific responsibilities; and
• elements common to all agencies, including employment practices, accessible premises, accessible service delivery, accessible information and communications, accessible procurement and effective consultation with people with disability.

I remain hopeful that this level of detail and this breadth of commitments will emerge in the development of the Strategy implementation plan over the first 12 months.

The Strategy still awaits endorsement by the Council of Australian Governments. I am hopeful that this will occur in January. Ahead of that,  I have been writing to Ministers to suggest that 12 months is not a very long time given the scale of the task. I said at an education sector conference last week that this exam is one where it would be a good idea to start work before the official starting time.

On one part of the National Disability Strategy, though, the examiners have already said “your time starts now”.

Everyone involved with disability knows that there are extra costs for participating in many areas of life – whether it’s a need for personal assistance, or needing to use taxis instead of cheaper forms of transport, or needing specialised equipment and services. Just having discrimination laws or other human rights laws doesn’t make those costs go away. Often they fall on people with disability and their families. Often they go unmet - so that people simply miss out on opportunity and participation, and our society misses out on everyone contributing to their full potential.

So I regard it as very positive that Australia’s Productivity Commission has already been asked to examine a national social insurance scheme for disability as part of the National Disability Strategy.

The Human Rights Commission has argued that a National Disability Insurance Scheme and institutions administering such a scheme could have major roles in achieving implementation of the Convention on the Rights of Persons with Disabilities.

We have argued that scheme design, including the purposes for scheme funds and the roles of institutional arrangements, should

• encompass the full range of human rights and obligations recognised by the Convention (thus for example addressing participation in and reasonable adjustments to mainstream activities rather than only specific disability services and supports)
• include measures to remove disabling barriers on societal and institutional as well as individual levels (noting the social model of disability adopted by the Convention)
• enhance capacity for effective participation in decision making by people with disabilities, including through support for and recognition of the roles of advocacy and representative organisations.

• disabling barriers to equal participation in mainstream services, facilities and opportunities are a significant source of needs for services and support directed specifically to people with disability; and that
• a scheme which reduces disablement and the social and individual costs of disablement over time accordingly needs to have sufficient scope to address disabling barriers in society.

The Commission has sought to emphasise the need for development of better (or in some areas, any) indicators of how we are doing in ensuring enjoyment of human rights for people with disabilities and achieving compliance with our obligations under the Convention and goals and targets for the future.

Agreeing on indicators and benchmarks for success is not always easy particularly in Federal-State discussions but I am hopeful that the further development of the National Disability Strategy will involve a strong focus on identifying how we will know if and how far we have advanced the goals of achieving an Australia which is inclusive, enabling and which provides equality and the opportunity for each person to fulfil their potential .

It has been pointed out in Australia that collection of data and statistics as is required by article 31 is fundamental to the operation of social insurance schemes. So an NDIS could assist in providing an evidence base for implementation actions and in monitoring progress achieved.

The Commission has noted that consistent with the social model of disability adopted throughout the Convention, data collection needs to go beyond data about impairment and about functioning of services and facilities specifically addressed to people with disability to also include data about social and environmental barriers and process in reducing these barriers and their impact.

Reporting performance against human rights indicators is an area where Australia appears to be some way behind some other countries such as the U.K. and New Zealand. For disability at least, an NDIS has the potential to change this.

Development of data and indicators through an NDIS could assist greatly in ensuring that reporting under article 35 is meaningful and assists in achieving effective implementation over time.

The Commission itself  has been given some continuing roles in promoting implementation of the Convention, which last year was added to the human rights instruments defining our jurisdiction.

The Commission has argued that institutions such as a National Disability Commission as have been proposed for the administration of an NDIS could complement and add value to existing Australian Human Rights Commission functions and activity  through 

• having a significantly greater resource base for disability rights activities
• working in co-operation with Australian Human Rights Commission policy, educational and other activities
• potentially resourcing the use by individuals and organisations of complaint and other processes under the Disability Discrimination Act.

Implementing the Convention and promoting human rights for people with disability and their families through a National Disability Strategy is full of creative and exciting and challenging positive agendas – on how we can and should work to better the wellbeing of Australia 's people.