"Other status": disability and human rights

Amnesty International conference: Human rights challenges and opportunities in the 21st  century
Brisbane 6 October 2011
Graeme Innes, Disability Discrimination Commissioner

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

I also acknowledge many friends and colleagues here.

Now this session has been accredited for continuing legal education purposes, so let's cut straight to the quiz. How many times is disability mentioned

• in the Universal Declaration of Human Rights?
• in the 1966 human rights Covenants?

If you answered "none", I'll sign your sheet now for the CLE points, because you already have a fair idea of what I want to say about human rights challenges and opportunities. But I hope you'll still stay to hear me say it.

I want to develop a bit further some thoughts I've touched on before today on the universality and indivisibility of human rights, and specifically how disability - as an inherent part of the human condition - fits into that.

I'm very pleased to participate in this event in Amnesty International's 50th  anniversary year. Since 1961 Amnesty has done outstanding work to advance human rights around the world, and to empower people to stand up against human rights abuses, instead of just being bystanders.  Of course, at the outset, Amnesty focused strictly on the specific civil and political rights issues of freedom from arbitrary detention, execution or torture.  That specific focus was seen as very important in building Amnesty's ability to campaign effectively. There's much to be said for setting priorities and sticking to them. As Frederick the Great said, "he who advances everywhere advances nowhere".

But over time, Amnesty has broadened its focus

• with a vision that encompasses everyone enjoying all of the human rights in the Universal Declaration; and
• a wide range of campaigning areas including indigenous rights; refugee issues; violence against women; human rights and poverty.

This broadening of focus hasn't diminished Amnesty's effectiveness, and has responded to the imperatives of the universality and indivisibility of human rights.

It's clearly true, for example, that poverty is both a cause and a consequence of violations of human rights, and accordingly that the right to an adequate standard of living is core human rights business.

Presentation of human rights as indivisible, rather than being divided up into different classes, is one of the great features of the Universal Declaration. You might be aware that Australia played a leading role in ensuring that the Universal Declaration was not restricted to recognising civil and political rights. Dr Evatt, who led Australia's delegation, came from a background as an eminent constitutional lawyer and judge. Last month's 60th  anniversary of his successful referendum campaign against the Communist Party Dissolution Bill reminds us that he knew a thing or two about the importance of civil and political rights.

But in the development of the Universal Declaration, Australia made a distinctive contribution to the recognition of 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 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? After all, 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.

In the international arena, we've frequently seen an unholy sort of bargain, where western governments get to regard economic and social rights as uneconomic and socialist, and non-western governments get to regard civil and political rights as a western imposition.

For rights classed as economic, social or cultural, the result, often, is 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 like this-

• civil and political rights are 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
• economic, social and cultural rights are 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 and policy.

It's easy to accept 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.

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

And it would be an unpleasant surprise to our colleagues who work in copyright law to find that the right of authors to protection of interests in their work isn't capable of being turned into justiciable rights.

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

Also, one of the major obligations that attaches to each of the rights recognised in the economic, social and cultural Covenant is the obligation to ensure that the right can be exercised without discrimination. And of course, discrimination is obviously capable of being made the subject of laws which provide for justiciable rights.

These 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, not 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'm reading, and as long as the law can't allow them to break in - at least without a warrant -  things are basically o.k.

Amnesty's experience, and the experience of vulnerable people prioritised in Amnesty's work, goes far beyond the limits of that sort of world view.

Much of the violence against women around the world happens in their own homes, or in places they have to call home.  And for refugees, the whole point is that their homes aren't safe anymore, and they need to seek a new one.

So I applaud Amnesty for seeking to protect human rights as they are experienced in the real world today, and not just in the basically o.k. world of our notional white middle class male 18th  century lawyer.

I want to give some emphasis to disability, as an essential part of engaging with that real world.

Let's go back to the quiz question. The Universal Declaration, and the twin Covenants, require that the rights they recognise be accorded to all persons "without distinction" or "without discrimination of any kind". Full marks for universality there - except that unlike, say, the Victorian Charter of Human Rights and Responsibilities, these instruments go on, in familiar United Nations style, to provide long lists of impermissible grounds for discrimination. And disability didn't make it onto those lists.

I still find it hard to explain that omission - given that the Universal Declaration was developed in response to "barbarous acts which have outraged the conscience of mankind", and that, in Hitler's Germany, having a disability definitely did qualify people for some other lists, including for being put on trains to the extermination camps.

But for whatever reasons, in the instruments of 1948 and 1966, all we have is a reference to "other status".

The last time the Australian Government put forward a human rights charter - the Australian Bill of Rights Bill which failed to pass the Federal Parliament in 1986 - it followed this same approach, based on the ICCPR,  of mentioning "other status" but not disability.

One of the first things the Australian Human Rights Commission did, after it was established in 1986, was to request legal advice to confirm that the ICCPR would permit action - both by the Commission under its own Act, and by Parliament in developing subsequent legislation - to address discrimination based on disability, as well as age or sexuality.

And 1992 saw the introduction of the Disability Discrimination Act, (followed by the Age Discrimination Act in 1996; and now the development of protection in federal discrimination law against sexuality and gender identity discrimination, as part of the current review of discrimination law).

But as most philosophy students, or any member of a marginalised section of the community, could tell you, having to wear the status of "other" is not the most empowering or inclusive experience. It's one thing to say that disability is covered legally this way - and even there the Commission has had some surprising arguments with senior government officials in the past. But clearly, instruments which don't even mention disability, are hardly the last word in doing something useful to protect, promote and fulfil human rights for people with disability, or in providing a platform for human rights education around disability issues.

This division of indivisible human rights into two categories, and two Covenants, impacts in the Australian context, by contributing to a lack of adequate implementation efforts.

It's been too easy to regard rights in the Economic, Social and Cultural Covenant as aspirational statements at best, rather than real rights, with real implementation obligations attached to them.

The rights in the ICCPR are clearly real rights. But there hasn't been a comprehensive implementation strategy here either.

You could say there's an elegant paradox. The standard statement of Australian treaty practice is that we only ratify treaties we are already in a position to comply with, including through having passed any requisite implementing legislation. And since civil and political rights are thought of as rights for immediate compliance, rather than progressive implementation, we must have already complied in order to ratify - so what need could there be for an active implementation strategy?

The first human rights convention of the 21st  century, the Convention on the Rights of Persons with Disabilities, has the merit of actually mentioning disability. But it also makes much clearer, compared to previous human rights instruments, that a national implementation strategy is indeed required. And it goes further, by setting out the sorts of measures that need to be taken.

Perhaps its for this reason that, despite being one of the newest human rights instruments, the Disability Convention was the first one in Australia to have at least the beginnings of a comprehensive implementation strategy put in place, with the endorsement of the National Disability Strategy by the Council of Australian Governments earlier this year.

I say "the beginnings", because the Strategy explicitly provides only a high level framework, with detailed implementation plans due to come back to COAG early in 2012. I urge Amnesty, and other organisations and individuals in the human rights community in Australia, to keep a close watch on this process.

International accountability for the implementation of the Disability Convention -through reporting processes, and through the communications procedure under the Optional Protocol to the Convention - clearly have a role to play in shining a candle on what we are doing, or failing to do, here in Australia. But in the end, it's the "what we are doing or failing to do here in Australia" bit that counts the most. This is just another an area where human rights advocates should be supporting onshore processing as the best option.

The human rights community has pointed out that whatever the executive government may have thought, or said, at the time of ratification, the ICCPR in fact requires remedies to be available for violations. Hence the continuing campaign for a Charter of Rights, which as you know the Australian Human Rights Commission supported, and continues to support.

But state obligations under the ICCPR are not confined to passing a law to provide for legal remedies for violations. Parties undertake to adopt the measures necessary to give effect to the rights recognised.

Yes, it's time for my favourite human rights quote again. The great French jurist Rene Cassin 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.

Successive Australian governments, to their credit, have given this point some attention, in developing and applying the concept of a National Human Rights Action Plan, which seeks to take human rights beyond the world of purely legislative measures, and into broader public policy commitments and strategies. Australia's first two Action Plans were disappointingly limited in their ambition and effect, but I'm very positive about the process the Attorney-General's Department is conducting now, for development of a new Action Plan. I know that Amnesty, and other human rights organisations and advocates, have been contributing actively to the process so far, and I look forward to that continuing.

What I emphasise here is how much need there is for urgent action to put an end to violations of the human rights of people with disability in Australia.

We accept that it takes time, decades even, to change inaccessible environments like buildings or transport systems. And that it takes time to remove exclusion and discrimination in education. The US Supreme Court famously required school desegregation to happen "with all deliberate speed".

What's harder to accept, is that over 30 years since Australia ratified the ICCPR, many people with disability face grave breaches of the rights it recognises. Not as a matter of the threat of infringing laws being introduced which need to be stopped; not even mainly as a matter of existing laws which need review; but as a matter of daily experience. And these include civil and political rights which have been at the core of Amnesty's mission from the beginning: freedom from arbitrary detention; freedom from cruel inhuman and degrading treatment; and bodily integrity.

It's over two years since I helped launch the "Rights Denied" report, funded by the NSW Law Foundation, which set out steps towards a national agenda on abuse, neglect and exploitation of people with cognitive disabilities in Australia. There are some very important recommendations in this report, which I hope will be picked up in the new National Human Rights Action Plan, and the implementation plans being developed under the National Disability Strategy.

Equally important is the highlighting of "disability issues" as serious human rights issues.

The human rights community, and the Human Rights Commission, have rightly campaigned for a change in the situation where thousands of asylum seekers spend years in immigration detention, instead of being able to live in, and contribute to, the community. The number of people who have no choice about where, and with whom they live, and who cannot participate in, and contribute to, community life because of that "other status" of disability, is many times larger.

The number of people with cognitive or psychosocial disabilities in our prisons is well in excess of their representation in the community, to the extent that we should recognise that prisons are currently a major form of the accommodation options our community provides for people with disability.

In many cases, these are people who have either completed their sentence, or not been sentenced at all, because of unfitness for trial, but who become, and remain, imprisoned anyway, for lack of other more appropriate options. Of course, this has an even more pronounced impact on Aboriginal people, given the disproportionate rates of disability in Aboriginal communities, and the lack of options and supports in remote areas.

Women and girls with intellectual disabilities continue to be subjected to violation of the right to bodily integrity, through medically unnecessary sterilising surgery, very often due to a lack of sufficient supports being provided to enable families to take other options. 

As pointed out by the Productivity Commission's excellent report on a National Disability Insurance Scheme, there are people with disability, today in Australia, who have to wear a nappy, and get no significant social interaction in a three month period, because of lack of resources to meet reasonable personal care needs. Otherwise known as poverty. If that's not degrading treatment, please tell me what is. And this in a rich country, where people on twice the average income are being told by the media, and some of our political leaders, to feel hard done by.

People in the disability community are used to the language, and too often the reality, of all this as abuse, neglect and exploitation. It's been so familiar, that it's often almost accepted as inevitable.

But people in the disability community are looking for this to stop. Looking, in fact, for what Peter Benenson would have called an amnesty. Let's join together to make this amnesty happen.

Thankks for the chance to speak with you today.