Disability and Human Rights
A Paper written and presented by Helen Meekosha to the Attorney General’s NGO Forum on Domestic Human Rights, Canberra, March 11 1999. Copyright 1999.
For many people with disabilities, Australia, at the end of the millennium, is experienced as a war zone. At a time when citizenship is a catch-cry in public debate, disabled Australians are effectively denied many of the simple rights their fellows take as given. This brief paper focuses on the processes which constrain and restrict the access to basic rights of disabled people. Human Rights are provided not solely in legislation, but most directly through services and activities in the community. When these ignore, deny or exclude disabled people no legislation is sufficient.
The category ‘disability’ is itself very loose – covering people whose impairments may be intellectual, physical, sensory, and psychiatric. Impairments may be temporary or permanent and in many ways able- bodiedness is a temporary condition. Yet we all have basic rights whatever the status the wider society seeks to impose on us.
The war-zone metaphor may appear specious to those who have no direct experience of disability – yet in the past few years there have been innumerable examples of situations where disabled citizens have been confronted by life and death situations due to the social responses to their disability. Few are ever reported in the public sphere.
A person with a psychiatric disability is shot dead on Bondi Beach because his behaviour appears bizarre to the police; a disabled woman wins a decade long struggle to adopt a child, who is then abducted and murdered allegedly by its natural mother; a blind woman has her guide dog seized from her in the street, and she is left abandoned; a disabled academic in a wheelchair is struck by a truck on campus trying to make her way to work in a university with no access policy. At least one in five women affected by domestic violence is a woman with a disability (Frohmader,1999) In addition it has become evident that countless people in institutions are left in the most horrendous, unhygienic and isolated circumstances; unlawful killings have emerged as a regular practice in some institutions. And there has been no replacement for the Disability Commissioner for two years, and the government plans to abolish the post.
There are thousands of stories in a minor key which reveal the exhausting struggle for simple services, self-respect and basic rights. A university leases a building for conferences, knowing it to be inaccessible and in breach of its own Access Plan. Taxi drivers abuse women whose physical appearance they find strange or threatening. Residents take AVOs against intellectually disabled people trying to live in the community. Parents lose custody battles simply on the basis of their impairment.
The Universal Declaration of Human Rights (UDHR), signed in 1948, marked the beginning of an era when all states should respect the rights of their citizens. In 1999, in Australia, as in many other parts of the world, widespread abuse of people with disabilities constitutes serious violation of many of the articles contained in the UDHR. The current political, economic and social climate in Australia is seriously undermining gains that have been made by the disability movement over the last two decades.
Recent debates that have taken place on the nature of citizenship, the constitution and the future of the Australian nation have largely ignored and thereby excluded the 18% of the population who are people with disabilities. Indeed many people with disabilities are effectively denied the opportunity to realise the basic rights and responsibilities of other Australian citizens. While we (the majority of whom are women) constitute nearly one-fifth of the population, we are neither visible in the community, nor likely to hold high office in the public or private sectors. At some point in their lives most of us are at serious risk of poverty, abuse and discrimination. We simply are not considered worthy of the “right to life, liberty and security of person” (UNDHR Article 3).
In recent years, we have built a political program based on the assertion that our primary disabilities are social, formed by the systematic exclusion by and fear within the wider society. Society sees us through our impairments, and treats us as medical cases, not as citizens with rights. For the most part. it is seen as ‘normal’ and inevitable that we be excluded, segregated and forgotten. Disabled people are confronted by many different power structures besides those which disables us – including relations of race, gender, ethnicity and sexuality.
Now it is time to bring about reconciliation with people with disabilities , by a process that recognises the damage that has been done and that allows us to speak our history. As has been recognised in relation to Indigenous Australians, it is not possible to move forward without an understanding of the depth and seriousness of past and current abuse and discrimination. For people with disabilities this means not only dealing with the effect of impairments, by providing the ramps and the hearing loops, but also understanding the role of socially constructed barriers. Powerful groups in the community have used strategies of exclusion, incarceration, denial of difference, and physical barriers in order to ensure people with disabilities are rendered invisible. We must seek a way forward that guarantees that people with disabilities are treated with dignity and respect and which recognises fully our place in society.
Some examples of violations of the rights of people with disabilities in Australia
Life, freedom and dignity
- Abuse and violence against people with disabilities in institutions (Articles 1-5 ), including starvation, beatings, sexual abuse, inappropriate medication and other forms of degrading treatment.
- Loss of life – deaths in care and police shootings.
- Forced sterilisation of disabled women and girls (Articles 5,16), (Brady and Glover, 1997).
- Ethical issues concerning the use of prenatal testing for disabled women.
- Lack of access/ cost of assistive devices, appliances, sign language interpreters, respite etc (Declaration on the Rights of Disabled Persons)
- Financial hardship and poverty – growth of user pays such as in the HACC program.
- Denial of sexuality, reproductive and parenting rights. (Article 16)
- Personal violence against women with disabilities and lack of access to refuges.
- Discrimination in rental accommodation; inadequate supported accommodation and respite care.
Access to justice
- Human Rights Legislation Amendment Bill: removal of Disability Commissioner; costs of unconciliated complaints (user pays); removal of HREOC power to seek leave to intervene in relevant cases (Article 6), proposed prescription of certain state legislation from DDA.
- Reduction in staff/resources in the Disability Unit at HREOC; reduced access to DDA.
- Cuts in Legal Aid affecting people with disabilities.
- People with disabilities losing custody/access battles on basis of disability.
- Lack of access to independent impartial tribunals (article 10).
- Invasion of privacy of people with disabilities (article 12) living in residential settings.
Rights to Mobility
- People with disabilities often trapped in homes and institutions due to lack of/cost of assistive devices and personal attendants/ access to transport.
- Physical environment is inaccessible and hostile to many people with disabilities.
- People with disabilities are subject to intrusive stares, comments and invasive remarks when in the community.
- No anti- vilification legislation for people with disabilities.
- Immigration Act exempt from DDA (article 14).
- Lack of Code covering Bioethics. What is the Australian Government position on Human Genome Project? Protection for genetic privacy ? Issues of respect for genetic diversity and uniqueness.
- Citizenship issues : right to vote, citizenship education , jury service, trial by peers etc. (Article 21)
- Lack of representation of people with disabilities within participatory democracy. The Australian Citizenship Act (1948) deems those of “unsound mind” ineligible to exercise the vote. (Article 21).
Rights to Work and Leisure
- Discrimination in Employment (Article 23); lack of adjustment in the workplace, lack of accessible transport to and from workplace
- Discrimination against people with disabilities in tourism, leisure and hospitality industry. (Article 24)
- No affirmative action rights for people with disabilities.
Rights to Health and Education
- Discrimination in education, pre schools, schools and higher education. Curriculum issues, access issues, absence of reasonable adjustment. (Article 26).
- Lack of access/ cost of assistive devices, appliances, interpreters etc
- Financial hardship and poverty – growth of user pays in HACC.
- Lack of access to appropriate medication/ inappropriate medication (Article 25).
- Need for implementation of report on Human Rights and People with Mental Illness
There exist a number of international legal instruments and reports that can be used to call on the Australian Government to account for its lack of attention to human rights issues for people with disabilities.
There are 6 International Conventions which from the basis of the international bill of rights. While only the Convention on the Rights of the Child specifically makes reference to rights of children with disabilities, there is no doubt that all these conventions apply to people with disabilities as well as other members of the community. They are:
- International Covenant on Civil and Political Rights (1966)
- International Covenant on Economic, Social and Cultural Rights (1996/1976)
- International Convention on the Elimination of all forms of Racial Discrimination (1965)
- International Convention on the Elimination of all forms of Discrimination against Women (1979)
- Convention against Torture (1984)
- Convention on the Rights of the Child. (1989)
Any doubt about the application of these conventions to people with disabilities has been put to rest by the World Conference on Human Rights. Para 63 of the Vienna Declaration and Program of Action states:
The World Conference on Human Rights reaffirms that all human rights and fundamental freedoms are universal and thus unreservedly include persons with disabilities. Every person is born equal and has the same rights to life and welfare, education and work, living independently and active participation in all aspects of society. Any direct discrimination or other negative discriminatory treatment of a disabled person is therefore a violation of his or her rights. The World Conference on Human Rights calls on Governments, where necessary, to adopt or adjust legislation to assure access to these and other rights for disabled persons. (at para 63)
There are a number of International Declarations, Guidelines and Resolutions emanating from the UN which deal specifically with a range of issues relating to disability:
- Universal Declaration of Human Rights (1948)
- The Declaration on the Rights of Disabled Persons (1975)
- Declaration on the Rights of Mentally retarded persons (1971)
- Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991)
- Standard Rules on the Equalization of Opportunities for Persons with Disabilities (48/96 of 20 December 1993).
- The Convention Concerning Vocational Rehabilitation and Employment(Disabled Persons)(1958) (ILO Convention 111)
There exist many reports emanating from international instrumentalities such as the UN and NGOs, including:
- World Program of Action Concerning Disabled Persons(1982)
- Vienna Declaration and Program of Action ( adopted at the World Conference on Human Rights) (1993)
- Report on Human Rights and Disability by Leandro Despouy, the Special Rapporteur of the United Nations High Commission on Human Rights (1991)
With respect to the human rights of people with disabilities, Cibinel and Kiwanuka (1998) state:
the findings of the report on Human Rights and Disability by Leandro Despouy, the Special Rapporteur of the United Nations High Commission on Human Rights, indicating that in most countries, human rights violations against disabled people take the form of unconscious discrimination, including the creation and maintenance of man-made (sic) barriers preventing disabled people from enjoying full social, economic and political participation in their communities…. Most governments appear to have a narrow understanding of human rights vis-a-vis disabled people and believe they need only abstain from taking measures which have a negative impact on them. As a consequence, disabled people are neglected in the area of human rights policy and legislation….
Disabled people across Australia are convinced that only through a thorough public exploration of the violence and discrimination against us can there be a future of equality and justice within local communities and in the wider social environment.
Disabled groups are in general agreement that there is need for an urgent Public Inquiry or Royal Commission into the abuse of people living in institutions, both historically and currently. This would allow for a public recognition of the grief and suffering that disabled people have experienced, and chart a way forward where all disabled citizens are able to enjoy their rights free from abuse.
The re-instatement of the Disability Commissioner with wide powers of investigation and enforcement. A Commissioner without adequate resources is of little value.
An independent audit of Australia’s compliance with the Standard Rules is necessary to begin to appreciate the issues confronting people with disabilities.
Disability become a standing item on the NGO Forum agenda.
Auditor General, N. S. W. (1997). Large Residential Centres for People with a Disability in NSW. Sydney, NSW Audit Office.
Brady, S. and Grover, S. (1997). The Sterilisation of Girls and Young Women in Australia: A Legal, Medical and Social Context. Sydney, Human Rights and Equal Opportunity Commission.
Carmody, M. (1990). Sexual Assault of People with an Intellectual Disability. Sydney, NSW Women’s Coordination Unit.
Cibinel, A and Kiwanuka, J (1998) “Human Rights and disabled people”, paper provided to UN Human Rights Vienna +5 Conference, June 1998, Ottowa (from firstname.lastname@example.org).
Conway, R., Bergin, L. and Thornton, K. (1996). Abuse and Adults with Intellectual Disability Living in Residential Services. Mawson, National Council on Intellectual Disability.
Cooper, M. (1993). “Discrimination Against Women with Disabilities.” Australian Disability Review 4: 69 -72.
Darrow, M. (1996). “International Human Rights Law and Disability: Time for an International Convention on the Human Rights of People with Disabilities.” Australian Journal of Human Rights 3(1): 69-96.
Degener, T. and Koster-Dreese,Y (eds) (1995) Human Rights and Disabled Persons, Dordrecht: Martinus Nijhoff.
Fletcher, A. (1995). Information Kit on the United Nations Standard Rules for the Equalisation of Opportunities for Persons with Disabilities. London: Disability Awareness in Action.
Frohmader, C. (1999). Violence Against Women with Disabilities, Dickson: Women with Disabilities Australia.
Gooding, C. (1994). Disabling Laws, Enabling Acts: Disability Rights in Britain and America. London: Pluto Books.
Hurst, R (ed) (1998) Are Disabled People Included?, London: Disability Awareness in Action
Jones, M. and Marks, L. (1999). Law and the Social Construction of Disability. Disability, Diversability and Legal Change, Dordrecht: Martinus Nijhoff.
Meekosha, H. and Jakubowicz, A. (1996). Disability, Participation, Representation and Social Justice. Disability and the Dilemmas of Education and Justice. C. Christensen and F. Rizvi. Milton Keynes, Open University Press: 79-95.
Meekosha, H. and Dowse, L. (1997). “Enabling citizenship: Gender, disability and citizenship.” Feminist Review (Autumn): 49-72.
Meekosha, H. (1998). Body Battles: bodies, gender and disability The Disability Reader: social science perspectives. T. Shakespeare. (ed) London: Cassell.
Meekosha, H. (1998). Feminism and Disability. Oxford Companion to Australian Feminism. B. Caine (et al). Oxford: Oxford University Press.
Newnham, H. (1996). “The sterilisation of intellectually disabled minors.” Australian Disability Review 1: 23-33.
Rayner, M. (1992). “Disability and Discrimination.” Australian Disability Review.
Rock, P. (1996). “Eugenics and Euthanasia: a cause for concern for disabled people, particularly disabled women.” Disability and Society 11(1): 121-127.
Silvers, A. (1998). “Disability Rights.” Encyclopaedia of Applied Ethics, Vol 1: 781-796.
Silvers, A. (1998). “Reprising Women’s Disability: Feminist Identity Strategy and Disability Rights.” Berkeley Women’s Law Journal 13: 81-116.
Waxman, B. (1991). “Hatred: The Unacknowledged Dimension in Violence Against Disabled People.” Sexuality and Disability 9(3): 185-199.
Waxman, B. (1994). “Up against Eugenics: Disabled Women’s Challenge to Receive Reproductive Health Services.” Sexuality and Disability 12(2): 155-171.