WWDA Submission to the Australian Government on the Draft National Action Plan on Human Rights


In late May 2004, the Australian Government (through the Department of Attorney General) released its Draft National Action Plan on Human Rights. This Submission is WWDA’s response to the Draft National Action Plan on Human Rights. Copyright WWDA July 2004.


Introduction

Women With Disabilities Australia (WWDA) is the peak organisation for women with all types of disabilities in Australia. It is a not-for-profit organisation constituted and driven by women with disabilities. It is the only organisation of its kind in Australia and one of only a very small number internationally. WWDA is unique, in that it operates as a national disability organisation; a national women’s organisation; and a national human rights organisation (More information about WWDA can be found at the organisation’s extensive website, located at: www.wwda.org.au).

This paper is a Submission in response to the Commonwealth Government’s (through the Department of Attorney General) request for comments on the ‘Australian National Action Plan on Human Rights’, released to members of the Attorney Generals NGO Forum on Domestic Human Rights, in late May 2004.


Recommendations

1. WWDA recommends that the Australian National Action Plan on Human Rights be developed in accordance with the Vienna Declaration and Programme of Action (Part 11, Para. 71). Inherent in this is the commitment for States to identify steps whereby that State would improve the promotion and protection of human rights.

2. WWDA recommends that the Australian National Action Plan on Human Rights provide a clear and frank assessment of the current human rights situation in Australia, including baseline and disaggregated data and an assessment of Australia’s human rights performance by relevant United Nations Human Rights Treaty bodies.

3. WWDA recommends that the human rights priority areas in Australia’s National Action Plan on Human Rights be identified through a process of consultation with all relevant stakeholders and following an assessment of the current human rights situation in Australia.

4. WWDA recommends that the Australian Government develop the Australian National Action Plan on Human Rights in accordance with the framework set out in the Handbook on National Human Rights Plans of Action (2002) developed by the Office of the United Nations High Commissioner for Human Rights.

5. WWDA recommends that the Australian Government immediately implement a range of inclusive consultative processes to enable meaningful participation by all stakeholders in the development of the Australian National Action Plan on Human Rights.

6. In relation to addressing the human rights of people with a disability within the Australian National Action Plan on Human Rights, WWDA recommends that meaningful consultation occur with the disability sector and other relevant stakeholders as a matter of urgency in order to:

  • Ascertain the current human rights situation for people with disabilities in Australia;
  • Identify what problems need to be overcome;
  • Identify priority areas for action;
  • Specify what action will be taken (in terms that provide benchmarks for the evaluation of progress);
  • Specify who is to take the action;
  • Establish a firm time frame in which action will be taken; and
  • Provide for effective monitoring and evaluation of what has been done.

7. In relation to addressing the human rights of people with a disability within the Australian National Action Plan on Human Rights, WWDA recommends that the Plan:

    • a) Include baseline data and an assessment of the current human rights situation of people with disabilities in Australia;

 

    • b) Make explicit recognition of the impact of multiple discriminations caused by the intersection of gender and disability;

 

    • c) Address as a priority, violence against people with disabilities, with particular and urgent attention to the alarmingly high rate of violence against women with disabilities;

 

    • d) Address as a priority, the unlawful sterilization of women and girls with disabilities. This must be done in the context of unlawful sterilization of women and girls with disabilities as an act of unnecessary and dehumanising violence and a gross violation of their human rights;

 

    • e) Address as a priority, the abuse, neglect, mistreatment, and discrimination of people with disabilities living in institutions. At the very least, the Plan should include as a major strategy, a Public Inquiry or Royal Commission into the abuse of people living in institutions, both historically and currently;

 

    • f) Clearly articulate formal support for the development and adoption of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, along with the processes required to enable people with disabilities to participate in the development of the Convention;

 

    • g) Urgently address the over-representation of people with disabilities in the criminal justice system. The Plan should include as a major strategy, an Inquiry into access to justice for people with disabilities, with a particular focus on practical strategies for protecting their rights in the criminal justice system, as recommended by the Productivity Commission in 2003;

 

    • h) Include strategies to address the discrimination experienced by people with disabilities in relation to access to health services in Australia. The Plan should include as a major strategy, the conducting of a Public Inquiry into Access to Breast and Cervical Screening for Women with Disabilities in Australia;

 

    • i) Include as one strategy to assess the human rights situation of people with disabilities in Australia, an independent audit of Australia’s compliance with the Standard Rules on the Equalization of Opportunities for Persons with Disabilities;

 

  • j) Urgently address the significant problem of unmet need with respect to the provision of support and assistance for people with disabilities in Australia.

1. Background

At the 1993 World Conference on Human Rights, the international community reaffirmed its commitment to the Universal Declaration on Human Rights through the adoption of the Vienna Declaration and Programme of Action. Representatives of 171 States adopted by consensus this Declaration, presenting to the international community a common plan for the strengthening of human rights work around the world. Australia was a signatory to this Declaration.

The Vienna Declaration and Programme of Action states: The World Conference on Human Rights recommends that each State consider the desirability of drawing up a national action plan identifying steps whereby that State would improve the promotion and protection of human rights (Part 11, Para. 71 emphasis added).

This recommendation was again reaffirmed by representatives of Governments of the Asia and Pacific region (including Australia) attending the Inter-sessional Workshop on the Development of National Plans of Action for the Promotion and Protection of Human Rights held in Bangkok, Thailand, from 5-7 July 1999.

In 1999, the Australian Government committed to re-write its National Action Plan on Human Rights. To this end, a Working Group made up of officers from various Government departments was established to begin the process of preparing a new Plan. At the first meeting of the Working Group on 6 May 1999, it was agreed that the new Plan needed to be forward looking and to highlight future action to be taken by the Australian Government in promoting human rights. It was also envisaged that the structure of Australia’s Human Rights Plan would “largely be based on that suggested in the conclusions of the Bangkok regional workshop on the Development of National Plans of Action for the Promotion and Protection of Human Rights” (Australian Government, Department of Foreign Affairs and Trade, June 2004).

RECOMMENDATION 1

WWDA recommends that the Australian National Action Plan on Human Rights be developed in accordance with the Vienna Declaration and Programme of Action (Part 11, Para. 71). Inherent in this is the commitment for States to identify steps whereby that State would improve the promotion and protection of human rights.


2. The Current Approach of the Draft National Action Plan on Human Rights

The current Draft National Action Plan on Human Rights (NAP) sets out the Australian Government’s approach to improving the awareness and enjoyment of human rights in Australia by outlining:

  • The focus for enhancing the enjoyment of human rights in Australia in the future; and,
  • Current measures that Australia has in place for the protection and enjoyment of human rights.

WWDA would argue that, in taking this limited approach, the Government’s current Draft National Action Plan on Human Rights does not reflect Australia’s commitment, both at the international and national levels, to develop a Plan that:

  • Identifies steps whereby the State would improve the promotion and protection of human rights (Vienna Declaration and Programme of Action 1993);
  • Is forward looking and highlights future action to be taken in promoting human rights (Australian Government 2004);
  • Is based on the conclusions of the Bangkok regional workshop on the Development of National Plans of Action for the Promotion and Protection of Human Rights (Australian Government 2004).

The Australian Government has stated its intention to develop a National Action Plan on Human Rights that is based on the Conclusions of the Bangkok Inter-sessional Workshop on the Development of National Plans of Action for the Promotion and Protection of Human Rights. These Conclusions included the intention of the Office of the United Nations High Commissioner for Human Rights to develop a handbook in connection with developing, implementing and evaluating national human rights plans of action. The Handbook, released in August 2002, provides a clear framework for the development of human rights action plans. In discussing the general principles of a Human Rights Action Plan, it identifies the clear need for the Plan to be ‘action-oriented’. As detailed in the Handbook, a National Action Plan on Human Rights should:

  • Indicate clearly what the current situation is;
  • Identify what problems need to be overcome;
  • Specify what action will be taken (in terms that provide benchmarks for the evaluation of progress);
  • Specify who is to take the action;
  • Establish a firm time frame in which action will be taken; and
  • Provide for effective monitoring and evaluation of what has been done.

The current Draft National Action Plan on Human Rights does not contain any of these elements, and is not in fact, an ‘Action Plan’. It is not ‘action-oriented’ and there is nothing in the draft document to indicate where Australia needs to improve in its performance in human rights. There are no targets, no benchmarks, no timeframes, no implementation strategy, no measures of performance, and no mechanisms for monitoring and evaluation.

The Government’s current Draft National Action Plan on Human Rights appears to concentrate more on documenting and reporting the Government’s current policy and program responses to promoting human rights in Australia. This approach is problematic, as the document runs the risk of being perceived as merely a ‘public relations exercise’. By simply including ongoing programmes in relevant areas and re-labelling them as human rights programmes, the NAP has the potential to fall well short of what might be achieved using the mechanism of a national human rights action plan.


3. Need for Assessment of the Current Situation

The current Draft National Action Plan on Human Rights does not provide an assessment or analysis of the current human rights situation in Australia. For example, there are no social indicators provided in the Draft NAP, yet these provide an important indication of the state of human rights observance, particularly in relation to economic, cultural and social rights. The Australian National Action Plan on Human Rights should include disaggregated data, including for race, gender, and other criteria, so that the incidence of discrimination is apparent. Alternatively, if this information is unavailable, the NAP should include plans to collect such data. Although the Draft NAP does list some groups in society which are ‘disadvantaged’ and require specific attention, it does not provide an assessment of their current human rights situation.

In providing an assessment of the current human rights situation in Australia, the Australian National Action Plan on Human Rights should also include information from relevant existing studies, including conclusions by United Nations treaty bodies and special rapporteurs, and relevant reports by national inquiries, NGO’s and so on.

It has been recognised that for a country to move forward towards better observance of human rights, it is important to know where it currently stands. An accurate and frank assessment of pressing human rights problems is essential to identifying solutions.

RECOMMENDATION 2

WWDA recommends that the Australian National Action Plan on Human Rights provide a clear and frank assessment of the current human rights situation in Australia, including baseline and disaggregated data and an assessment of Australia’s human rights performance by relevant United Nations Human Rights Treaty bodies.


4. Identification of Priorities

The Draft National Action Plan on Human Rights lists five priorities for human rights in Australia:

  • promoting a strong, free democracy;
  • human rights education and awareness;
  • assisting disadvantaged groups to become more independent;
  • supporting the family, and;
  • promoting human rights internationally.

There is no information provided about how these five priority areas were determined, or what process was used to identify these priority areas. WWDA believes that the priorities for action should be based on, and include, the most urgent human rights problems in Australia. For example, where there are people whose right to life is at risk, who are living in pain, fear and insecurity, who are living in misery because their economic, social and cultural rights are denied, or who suffer discrimination, some of the priority areas for action should be clear. A NAP on Human Rights should be designed to give preference to eliminating such serious problems.

RECOMMENDATION 3

WWDA recommends that the human rights priority areas in Australia’s National Action Plan on Human Rights be identified through a process of consultation with all relevant stakeholders and following an assessment of the current human rights situation in Australia.


5. Vulnerable Groups

It is recognised that an important issue in the consideration of priorities for a National Human Rights Plan, is the human rights situation of ‘vulnerable’ groups in society. Priority area 3 (assisting disadvantaged groups to become more independent) within the Draft National Action Plan on Human Rights, does give consideration to some ‘vulnerable’ groups, including: indigenous peoples, ethnic, linguistic and religious minorities, people with disabilities, women, and the aged. It is of concern, however, that a number of other vulnerable groups have been omitted, including for example: refugees, those living with HIV/AIDS; sexual-orientation minorities; and children (including for example, children in detention). It is also of major concern that the current Draft NAP does not address the current human rights situation of those ‘vulnerable’ groups it identifies in Priority Three, nor does it identify what problems need to be overcome, and what action will be taken to address the problems.


6. Structure of the Draft National Action Plan on Human Rights

6.1. Aim and Objectives

The current Draft National Action Plan on Human Rights does not appear to contain a clear statement about the purpose of the Plan. A National Action Plan on Human Rights should, in its introductory section, include statements about the broad purposes and conceptual issues of the Plan. Such statements should emphasise the importance of a commitment to international human rights standards both as a source of inspiration and as specific guidance for action. Such considered statements constitute a useful orientation to those implementing the Plan as well as providing guidance to the general public. Given that the Australian National Action Plan on Human Rights should be a public document, it is vital that the introductory sections make it clear as to the purpose of the Plan.

6.2. Scope of the Plan

In addition to the more traditional issues such as civil rights within the legal system and discrimination, the Australian National Action Plan on Human Rights should also be addressing issues that have appeared more recently on the human rights agenda. For example, issues such as trafficking in women, and child pornography on the Internet. It is of concern that these issues are not considered within the five priority areas identified within the Draft NAP. It has also been recommended by the Office of the United Nations High Commissioner for Human Rights (2002) that a Human Rights Action Plan should take account of information technology issues that affect human rights, both positively by enhancing the dissemination of human rights information and negatively by providing a medium for exploitation (for example with regard to children).

6.3. Format of the Plan

WWDA is of the view that a National Action Plan on Human Rights should be a practical, working document that is aimed at, and can be implemented by, both practitioners as well as the general public. It should therefore be a document that inspires and encourages users. In this sense, the Australian National Action Plan on Human Rights should have a clear layout and should be easy to understand. A Human Rights Action Plan should be set out in a way which gives a clear indication of the current state of affairs and the proposals for change. The Handbook on National Human Rights Plans of Action (2002) suggests that, in order to achieve this, a basis of headings be used. Such headings may include:

  • International obligations and national legislation;
  • What has been done to date;
  • Present situation (drawing on baseline data and information);
  • Proposed action within various time frames – short, medium and long;
  • Institutional responsibility for the proposed action and identification of resources;
  • Monitoring and evaluation.

WWDA believes that, whilst the current Draft NAP does give information about international obligations and national legislation, along with some information on what has been done to date, there are clearly several elements which are not included and which must be included in any final document. The Draft NAP does not provide a clear picture of the current human rights problems in Australia. It does not document what needs to be done to address these problems. It provides no information about who will have the responsibility of addressing these problems. No information is provided on what resources will be needed to address the problems identified. There is no information provided on how the addressing of these problems will be monitored and evaluated.

Given that a National Action Plan on Human Rights should be a practical, working document that is aimed at, and can be implemented by, both practitioners as well as the general public, it would be useful to include relevant contact details of key organisations in each sector. This will enable NGO’s and the general public to become engaged more readily in the implementation of the plan.

6.4. Objectives, Targets and Benchmarks

The current Draft National Action Plan on Human Rights contains five priorities for human rights in Australia:
1) promoting a strong, free democracy;
2) human rights education and awareness;
3) assisting disadvantaged groups to become more independent;
4) supporting the family, and
5) promoting human rights internationally.

However, there are no objectives, targets or benchmarks listed for any of these 5 priority areas. For example, within Priority Area 3 (assisting disadvantaged groups to become more independent), the current Draft NAP states:

The Government is dedicated to reducing the disadvantage experienced by Indigenous Australians and to increasing their opportunities to achieve self-reliance and economic independence. (p7).

However, there are no objectives (broad or specific), targets or benchmarks to indicate how this will be achieved.

It is well documented that Indigenous Australians continue to experience the poorest health of any group in Australia. In 1998-2000, life expectancy for Aboriginal and Torres Strait Islander peoples was shorter by 21 years for males and 20 years for females, compared with the total population (ABS 2002).

WWDA argues that this type of information should, as a matter of course, be included in Australia’s National Action Plan on Human Rights (as part of providing an assessment of the current human rights situation in Australia; and identifying the most pressing human rights problems). Surely, in light of what is known about the status of Indigenous Australians, it would seem obvious that a key objective in Australia’s National Action Plan on Human Rights would be to reduce the mortality and morbidity rates of Indigenous Australians. The reduction of the mortality rate of Indigenous Australians to a certain rate would then become one of the benchmarks for the observance of human rights in this area.

It has been recommended that, in developing a National Action Plan on Human Rights, targets/objectives should set out conditions providing evidence that the goals are being achieved. This greater level of specificity will serve the important purpose of facilitating more effective monitoring and evaluation (Office of the United Nations High Commissioner for Human Rights 2002).

6.5. Activities, Performance Indicators and Responsibility for Implementation

The current set out of the Draft National Action Plan on Human Rights does not provide clear information about what activities the Government will undertake within the 5 priority areas for human rights in Australia. The activities within a National Action Plan on Human Rights should make up the substantive content of the NAP, and should be the specific actions that the Government commits itself to undertake. The Australian National Action Plan on Human Rights should also contain clear and specific performance indicators, which represent the standard that will be used to evaluate whether or not the agreed objectives have been achieved. It is of concern that the current Draft NAP does not contain specific performance indicators.

It has been recommended that a National Action Plan on Human Rights be prepared in a tabular format that sets out the interrelationship between its various elements (Office of the United Nations High Commissioner for Human Rights 2002). For example, such a table could incorporate goals, objectives, activities, the agency or agencies responsible for carrying out each activity, the timetable for each activity and a description of the performance indicators that may be used to determine whether the activity has been carried out according to plan. If a tabular format is not used, the document should be structured in such a way that these various elements and their interrelationship are clear to the user.

The Australian National Action Plan on Human Rights should also clearly specify which agencies are responsible for implementing the various activities provided in the document. Where partnerships are required to implement the activities (say with NGO’s etc) this should also be made clear.

6.6. Timeframes

The current Draft National Action Plan on Human Rights does not set out or make clear the timeframes for the Plan, both as a whole, and for specific components of the NAP. As the aim in national human rights action planning is to promote a more systematic approach to human rights policy and to provide a stimulus to action, it is desirable to propose specific timeframes in the NAP for the achievement of its objectives. There should also be a timeframe for the Australian National Action Plan on Human Rights as a whole so that government and civil society have a global frame of reference for assessing the plan’s achievements and shortcomings (Office of the United Nations High Commissioner for Human Rights 2002).

6.7. Monitoring and Evaluation

The current Draft National Action Plan on Human Rights does not include information on how the NAP will be monitored and evaluated, both in terms of the ongoing process of assessing the effectiveness of the NAP, and the overall assessment and results achieved. Monitoring and evaluation mechanisms must be incorporated in the Australian National Action Plan on Human Rights as an essential component. According to the Office of the United Nations High Commissioner for Human Rights (2002):

‘Experience in many areas has demonstrated that activity without objectives and evaluation tends to be both ineffective and self-perpetuating. Stating of objectives amounts to little more than rhetoric if they are not accompanied by a process of evaluating the activities aimed at implementing them’.

RECOMMENDATION 4

WWDA recommends that the Australian Government develop the Australian National Action Plan on Human Rights in accordance with the framework set out in the Handbook on National Human Rights Plans of Action (2002) developed by the Office of the United Nations High Commissioner for Human Rights.


7. Process of Consultation on the Development of the Draft National Action Plan on Human Rights

WWDA is deeply concerned at the apparent limited consultation on the development of the Draft National Action Plan on Human Rights. WWDA received the Draft NAP at the end of May 2004 and was requested to provide comment on the Plan by 11 June 2004. WWDA encountered further difficulty and delay in obtaining an electronic version of the document from the Attorney General’s Department. The extent of the Government’s consultation on the Draft NAP was limited to members of the Attorney General’s NGO Forum on Domestic Human Rights. The Attorney General’s Department made it clear that the Draft NAP was not for distribution outside the members of the NGO Forum on Domestic Human Rights.

It has been well documented and widely acknowledged that a National Action Plan on Human Rights is both an outcome and a process:

‘The manner in which a national action plan is developed will increase its chances of success. Key elements are the extent to which the plan enjoys high level support and the breadth and depth of the consultation process.’ (Office of the United Nations High Commissioner for Human Rights (2002)

The Handbook on National Human Rights Plans of Action, developed as an outcome of the Inter-sessional Workshop on the Development of National Plans of Action for the Promotion and Protection of Human Rights held in Bangkok (Thailand, 5-7 July 1999) describes in detail the importance of consultation in the development of a NAP:

‘Contemporary society all over the world increasingly demands a participatory and transparent approach to public policy making. A national action plan must provide a central role for civil society. It should embrace the broadest range of participants from all sectors of society – human rights NGO’s and community organisations of all types as well as relevant individuals. An effective consultation process during the development of the plan will encourage broader understanding and acceptance of it. The consultation process is crucial for the credibility and ultimately, the effectiveness of the Plan. A national human rights action plan is part of a long-term process of enhancing national observance of universal standards that should survive changes of government and be above political dispute.’

The Handbook on National Human Rights Plans of Action (2002) provides detailed recommendations on the mechanisms for consultation. The mechanisms include:

  • The establishment of a National Coordinating Committee (to include representatives of both Government agencies and civil society organisations, along with equitable representation of ethnic, indigenous, religious, disabled, regional and other minorities).
  • Sectoral Working Groups
  • Meetings between government and civil society representatives
  • Consultations between and within civil society organisations
  • Informal personal and telecommunication contacts
  • Public Meetings, including in regional and remote areas
  • Establishment and maintenance of an interactive website
  • Public hearings
  • Provision for written submissions
  • Use of media, including development of an interactive media strategy.

RECOMMENDATION 5

WWDA recommends that the Australian Government immediately implement a range of inclusive consultative processes to enable meaningful participation by all stakeholders in the development of the Australian National Action Plan on Human Rights.


8. Comments on the Current Strategies in the Draft NAP to Address the Human Rights of People with a Disability

Due to the limited timeframe provided by Government for responses to the Draft National Action Plan on Human Rights, WWDA has elected to focus its specific comments on the human rights of people with a disability, currently contained within Priority Area 3: ‘Assisting disadvantaged groups to become more independent’ of the current Draft NAP (p.34).

8.1. Australian Government Disability Strategy

The current Draft National Action Plan on Human Rights provides a brief description of the Commonwealth Disability Strategy (CDS), stating in part, that ‘the revised Australian Government Disability Strategy is a planning framework to assist Australian Government agencies to meet their obligations under the Disability Discrimination Act 1992….’ and ‘All Australian Government agencies are required to assess their performance and report against the reporting framework in their annual reports’.

WWDA believes that there are a number of issues that should be considered if the CDS is to be included in the Australian National Action Plan on Human Rights as a strategy to address the human rights of people with a disability, including:

  • Why and when the CDS was established;
  • Results of Evaluations of the CDS (ie: the Draft NAP refers to ‘the revised CDS’ but provides no information on when or why it was ‘revised’);
  • Outcomes and achievements of the CDS;
  • Shortcomings of the CDS (ie: where it needs to be improved);
  • Level of participation by government agencies (ie: the Draft NAP refers to the fact that Government agencies are required to assess their performance and report against the CDS, but provides no indication of whether this occurs, what happens if it doesn’t, how it is enforced, and so on);
  • Current evaluation of the CDS (ie: the Social Policy Research Centre (SPRC) and Disability Studies and Research Institute (DSaRI) have just commenced the Evaluation of the CDS);
  • How the CDS has improved the human rights of people with disabilities in Australia.

8.2. Development of Disability Standards

The current section in the Draft National Action Plan on Human Rights on Disability Standards is extremely limiting and provides the reader with little idea as to whether the ‘development of disability standards’ have improved the human rights of people with disabilities in Australia.

The Commonwealth Disability Discrimination Act (1992) (DDA) received royal assent on November 5, 1992 and became law. When the Act was promulgated through parliament, it contained provisions for the rights and obligations under the Act to be set out in more detail through instruments to be known as Disability Standards. Under section 31 of the DDA, there is provision for the Attorney-General to formulate specific Standards under the Act in the areas of: Public Transport; Education; Employment; Accommodation; Administration of Commonwealth Government Laws and Programs; and Access to Public Buildings (added following an amendment to the DDA in 1999 which came into effect on the 13 April 2000).

The current Draft NAP mentions only the Disability Standard for Access to Premises (‘Draft’), the Disability Standards for Education (‘Draft’), and the Disability Standards for Accessible Public Transport. There is no information provided on the three remaining areas where Standards are to be developed. Within the brief discussion on the Disability Standards for Education, the Draft NAP states in part: ‘Implementation of the Standard will yield improved education and training outcomes for students with disabilities’. Yet there is no timeframe provided as to when the Standard will be implemented, nor any detail on how it will be implemented and how it will be monitored and evaluated.

The reality is that in the decade and more since the DDA was enacted, only one Disability Standard has been implemented (Disability Standards for Accessible Public Transport). The Productivity Commission, in it’s Review of the Disability Discrimination Act (2003) found that ‘the development of disability standards has been very slow and only one set of standards has been developed to date’ (Draft Finding 12.6). The Productivity Commission, in its Draft Report also stated: ‘The process of developing standards can raise community awareness, but standards have more impact when they become law. The drawn-out consultation process has limited their impact.’

WWDA believes that there are a number of issues that should be considered if the ‘Development of Disability Standards’ is to be included in the Australian National Action Plan on Human Rights as a strategy to address the human rights of people with a disability, including:

  • Clear information on the six Disability Standards to be developed under Section 31 of the DDA;
  • Timeline for the development and implementation of the 5 remaining Disability Standards;
  • Outcomes and achievements of the Disability Standards process to date (including the effects of the Disability Standards for Accessible Public Transport);
  • Shortcomings of the Disability Standards process (ie: where it needs to be improved);
  • How the development and implementation of Disability Standards has improved, or will improve the human rights of people with disabilities in Australia.

8.3. Productivity Commission Review of Disability Discrimination Act

The current section in the Draft National Action Plan on Human Rights on the Productivity Commission Review of the Disability Discrimination Act is extremely limiting and provides no strategies or detail on how the Australian Government intends to address the shortcomings of the Disability Discrimination Act (1992) as detailed in the findings of the Productivity Commission Review of the Disability Discrimination Act (2003).

The current section in the Draft NAP on the Productivity Commission Review of Disability Discrimination Act states in part:

The draft Report also suggests that the Act has been reasonably effective in reducing overall levels of discrimination. However, it suggests there is some way to go before achieving its objectives of eliminating discrimination. It suggests people with physical disabilities have been helped more than those with mental or intellectual disabilities; access to transport and education have been improved more than employment opportunities; and people in regional areas, from non English speaking backgrounds and Indigenous Australians still face particular disadvantage.

WWDA believes that the Australian National Action Plan on Human Rights should clearly articulate, through objectives, strategies and performance measures, what will be done to address these issues, as well as the Recommendations stemming from the Final Report of the Productivity Commission Review of Disability Discrimination Act.

8.4. Encouraging greater participation in the workforce by people with disabilities

The current section in the Draft National Action Plan on Human Rights on ‘Encouraging greater participation in the workforce by people with disabilities’ is extremely limiting, and provides no clear picture of the current employment status of people with a disability in Australia, nor any information of how this situation will be improved. For example, the Draft NAP states in part: ‘To assist people with disabilities to move into employment, the Government will also make significant additional investments in rehabilitation, disability employment, mainstream employment, and education and training’. However, no information is provided as to how and when this will occur, how it will be monitored, and so on.

It is of concern that the Draft NAP provides no information or statistics on the current employment status of people with a disability. We know that disabled people are still greatly overrepresented in unemployment figures (almost twice the unemployment rate of non-disabled people) and that the situation is much worse for women with disabilities. This baseline information should be provided in the Australian National Action Plan on Human Rights as a matter of course.

The Draft NAP identifies the Government’s current welfare reform process as the mechanism to ‘ensure that people with disabilities are able to fulfill their aspirations and potential for work’. However, it has been widely documented that the Government’s proposals to ‘increase participation in paid employment’ and ‘build a simpler system to help jobless families and individuals’ fail to acknowledge the structural and systemic barriers which prevent people with disabilities from enjoying full social, economic and political participation in their communities. For example, discrimination continues to be a major barrier for people with disabilities in employment. In 2001-02, as in most years, over half of all Disability Discrimination Act (DDA) complaints to the Human Rights and Equal Opportunity Commission (HREOC) were in the area of employment (HREOC 2002, Productivity Commission 2003). In its Review of the Disability Discrimination Act, the Productivity Commission found that:

‘the number of complaints under the Disability Discrimination Act (1992) and participants’ views indicate that disability discrimination in employment remains a significant issue. Overall, the Act appears to have been least effective in reducing discrimination in employment’. (Productivity Commission Draft Report 2003).

One could argue that if the Australian Government is committed to ‘encouraging greater participation in the workforce by people with disabilities’, it would be well served to address the significant decline in the numbers of people with disabilities it employs within the Australian Public Service (APS). Currently, people with a disability represent 3.6% of APS employees, down from 5.5% a decade ago. This decline occurs across all job classifications. Research conducted by the Australian Public Service Commission (APSC) shows that people with a disability employed within the APS are significantly more dissatisfied with their job than people without a disability. Only 49% of people with a disability have a job satisfaction index of over five compared to 77% of people without a disability (APSC 2004).

In relation to the APS and people with a disability, the Australian Public Service Commission (2004) states:

‘Overall, the picture is not positive. Despite the strategies agencies report having in place, the representation of people with a disability is continuing to decline. Significant numbers of employees with a disability disagree their agency is providing support and they are more dissatisfied in their jobs. Further analysis is needed in this area to identify possible causes. Agencies also need to consider more carefully, including in consultation with their employees with a disability, the effectiveness of their strategies.’

8.5. Education of students with disabilities

The current section in the Draft National Action Plan on Human Rights on ‘Education of students with disabilities’ is, once again, extremely limiting, and provides no clear picture of the current situation of people with disabilities in relation to education, nor any information of how this situation will be improved. People with a disability are less likely to have completed a higher educational qualification than those without a disability. Women with disabilities are likely to have received less education than both non-disabled women and men with disabilities. Current data on people with a disability and education should be included in the Australian National Action Plan on Human Rights as a matter of course.

It is clear that people with disabilities continue to experience discrimination in education. Research shows that discrimination in education is perceived to be a major problem by people with disabilities and their families, and that discrimination occurs right through the education system at all levels and in all States of the Federation. The problem is particularly pronounced in school education where compliance with the Disability Discrimination Act (DDA) varies greatly both between and within States and Territories, and the public and private sectors. It is also apparent that awareness of the DDA is generally poor right through the education sector (Jackson et al 1999; Clear 2000).

According to Jackson et al (1999):

‘The current DDA, while helpful, has not ensured that discrimination in education does not occur with large or small systems, particularly in the area of inclusion of students with an intellectual disability, learning disability, attention deficit hyperactivity disorder, other behavioural disorders and psychiatric disabilities. Indeed it seems that it is considered to be a failure by families trying to gain inclusive education for their son or daughter.’

The Draft NAP makes reference to the National Regional Disability Liaison Officer (RDLO) initiative and identifies the role of these Officers as being ‘to facilitate the transition of students with disabilities from school to TAFE or university and from study to work’. However, there is no information provided as to when the scheme was implemented, how long it runs for, what the outcomes have been and so on. If this scheme is to be incorporated into the Australian National Action Plan on Human Rights as a mechanism to improve the human rights of people with disabilities, then there should be clear objectives, strategies, targets/benchmarks and performance measures attached to it.

The Draft NAP also makes reference to the development of Disability Standards for Education, stating that ‘the standards will clarify the legal obligations of education and training providers under the Disability Discrimination Act’. Once again, there is no information provided as to when the Standard will be implemented, nor any detail on how it will be implemented and how it will be monitored and evaluated. If the development of Disability Standards for Education is to be included in the NAP as a mechanism to address and improve the human rights of people with disabilities in relation to education, then it needs to be incorporated in a way that will enable ongoing monitoring, measurement and evaluation.

8.6. Access to telecommunications for people with disabilities

The current section in the Draft National Action Plan on Human Rights on ‘Access to telecommunications for people with disabilities’ provides one paragraph on the issue, and restricts the very limited discussion to the standard telephone service. Clearly, access to telecommunications for people with disabilities is much, much broader than this. It has been widely documented that people with disabilities have been ‘left behind’ in the advances in telecommunications in Australia (see for example: Ozdowski, 2003, Goggin and Newell 2000).

In 2003, the Human Rights and Equal Opportunity Commission (HREOC), in recognising the significant disadvantages facing people with disabilities in relation to telecommunications, commissioned the development of a Discussion Paper on the issue. This Paper, released in June 2003, reviewed the major issues for access to telecommunications services and equipment for people with disabilities, and recommended strategies for maximising access and minimising discrimination (Jolley 2003). In response to this Paper, HREOC convened a National Forum on Accessible Telecommunications for People with Disabilities, which was conducted in November 2003, and officially opened by the Federal Attorney General, Philip Ruddock. The Attorney General articulated the purpose of the Forum as being to: ‘work co-operatively through the recommendations in HREOC’s Discussion Paper, and develop a workplan for the future which will address the areas where people with disabilities are currently being discriminated against’.

Commissioner Sev Ozdowski, in his opening address at the Forum, stated:

‘Equitable access to telecommunications should be regarded as a basic human right for all Australians�. However, the situation for people with disabilities – facing barriers of both affordability and accessibility – is not so positive. Many people with disabilities in Australia cannot exercise their basic right of access to telecommunication on the same basis as the rest of society’.

It is of concern that the current Draft NAP provides such a narrow discussion on access to telecommunications of people with disabilities, and in doing so, shows a complete lack of understanding of the breadth of the issues, and the discrimination experienced by people with disabilities in this area. Clearly, the Australian National Action Plan on Human Rights needs to provide a much more accurate account of the current situation of people with disabilities in relation to telecommunications. In relation to objectives, strategy development, and targets/benchmarks required in this area, it would seem logical to utilise the information stemming from the recent National Forum on Accessible Telecommunications for People with Disabilities, including the current development of a Workplan which aims to address the areas where people with disabilities are currently being discriminated against.


9. The current human rights situation of people with disabilities in Australia

In Australia in 2004, it is clear that many people with disabilities are effectively denied the opportunity to realise the basic rights and responsibilities of other Australian citizens. Disabled people continue to be medicalised, to be treated as different from the ‘norm’. Rather than being full citizens, they face restricted access to economic, social, political and cultural participation. While disabled people constitute one-fifth of the population, they 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 them are at serious risk of poverty, abuse and discrimination. They simply are not considered worthy of the “right to life, liberty and security of person” (United Nations Declaration of Human Rights Article 3).

Despite the fact that there have been many reports in Australia of neglect, mistreatment, discrimination and abuse of disabled children and adults in state-run institutions, disabled people in institutions continue to live in appalling conditions and suffer ongoing abuse and degradation of their basic human rights. Legal and bureaucratic systems have been deeply implicated in some of the worst cases of violence, abuse and hate crimes directed at disabled people. Sexual and physical assaults have been, and continue to be commonplace in many state institutions (Sherry 2002, Clear 2000). For example, in 2003, mentally and physically disabled children and adults in residential care in Queensland were locked in cages and physically and sexually abused (The Bulletin Magazine December 3, 2003). As recently as June 2004, two disabled residents were removed from a state run residential service after it was discovered that they had been abused and neglected by staff while in state care (Mercury Newspaper June 4, 2004). These are not isolated incidents. It is clear that an entrenched “culture of abuse” (physical, emotional and sexual) continues to exist in both public and private institutions.

Disabled people continue to be significantly over-represented in police lock ups, courts and prisons. Research has found that people with an intellectual disability make up 12-13% of prison population, that is, approximately four times that of the general population (Disability Council of New South Wales, 2000; NSW Law Reform Commission 1996).

In Australia, over 8000 people with disabilities nationally have been placed in largely inappropriate institutional care facilities, which may offer a modicum of care for their basic physical needs (and often not even that) but do little to affirm their lives and opportunities (Meekosha 2002). In 1998, the Australian Institute of Health and Welfare identified 13,500 people with disabilities in urgent need of accommodation and support services. Population growth and ageing were expected to increase demand in the near future (Sherry 2002, Clear 2000). A significant number of people with psychiatric disabilities continue to live in sub-standard housing, without appropriate support services. People with disabilities continue to be denied access to community support services and agencies due to their exclusion policies and practices (NSW Ombudsman 2004).

Lack of access to affordable, secure and appropriately designed housing continues to be a critical issue for people with disabilities. Many people with disabilities continue to be inappropriately housed. Those with severe physical and multiple disabilities are often accommodated in nursing homes, and hostels and hospitals. Deinstitutionalisation has been intended to enable people with disabilities to become part of the wider community. However, the reality is that whilst specialist institutions have been closing, the essential support services for community integration are insufficient to meet the needs of people with disabilities. Consequently, many live in inappropriate environments (such as hotels and boarding houses) where they are more vulnerable to abuse and exploitation (Frohmader 2002, Burdekin 1993).

Disabled people are still greatly overrepresented in unemployment figures. The Australian Bureau of Statistics (ABS) estimates in 1993 and 1998 continued to highlight the link between disability and unemployment. Participation rates of disabled people were less than half that of the general population, and disability unemployment rates were double (ABS 1993, 1998). Preliminary analysis of the 2003 Disability Carers and Ageing Survey (ABS) indicate that not much has changed – people with a disability continue to have a higher unemployment rate (8.6%) than those without a disability (5.0%); and people with a disability who are employed are more likely to work in a part-time job (37%) than those who are employed and do not have a disability (29%).

Education is one of the central tenets of citizenship. Exclusion from education has also meant exclusion from citizenship; denying people with disabilities the fundamental tools to participate fully in the life of the community. People with a disability are less likely to have completed a higher educational qualification than those without a disability. In 2003, one in five people aged 15-64 years living in households who had no disability had completed a bachelor degree or higher, compared to one in eight people (13%) with a disability (ABS 2004).

At a micro level 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 people with disabilities whose physical appearance they find strange or threatening. Local neighbourhood residents take Apprehended Violence Orders (AVOs) against intellectually disabled people trying to live in ‘their’ community. Parents, especially mothers, lose custody battles simply on the basis of their impairment.


10. The current human rights situation of women with disabilities in Australia

Women with disabilities in Australia continue to encounter discrimination on several levels, each of which restricts their options and opportunities for equal participation in the economic, social, and political life of society. Women with disabilities are disadvantaged attitudinally, economically, politically, psychologically and socially. Aside from ableism, women with disabilities also face sexism, racism, ageism and discrimination based on sexual orientation. They face double discrimination by society – as women they are discriminated against on the basis of gender and as people with disabilities, they are discriminated against on the basis of their disability. This discrimination is often embedded in cultural societal values that limit women’s opportunities for self-improvement and self-development (Frohmader 1998; Pardo 1997). Women with disabilities are devalued by society as a result of stereotyped and negative attitudes towards them. Much of the discrimination experienced by women with disabilities is based on an implicit notion that they are not the same as other women and so cannot be expected to share the same rights and aspirations.

Women with disabilities in Australia are not only one of the most socially disadvantaged groups in society, but also clearly one of the most marginalised, neglected, excluded and isolated. Women with disabilities are ignored in Government legislation, policies and programs. Their issues and needs are neglected within services and programs across all sectors. They are excluded from social movements designed to advance the position of women, and the position of people with disabilities. Women with disabilities in Australia are raped, abused, unlawfully sterilised, chemically restrained, medically exploited, institutionalised, denied control over their bodies, their finances and living situations. They are denied employment, education and training. They are denied social contact and opportunities to participate in their community. They are discriminated against, harassed, humiliated, victimised, and vilified (Frohmader 2002, WWDA 2002).

The United Nations has recognised that women with disabilities women are among the poorest of all groups in society. Women with disabilities in Australia are significantly poorer than men with disabilities, partly due to the fact that they are more likely to be unemployed and partly due to the fact that when they work they receive considerably lower wages than men with disabilities. Men with disabilities are almost twice as likely to have jobs than women with disabilities. Women with disabilities’ participation rates in the labour market are lower than men with disabilities’ participation rates across all disability levels and types. Women with disabilities are less likely than men with disabilities to receive vocational rehabilitation or entry to labour market programs. Twice as many women with disabilities work part-time as males with disabilities (Frohmader 2002).

Access to education remains one of the greatest obstacles to equality for women with disabilities. When it comes to education, women with disabilities are likely to have received less education than both non-disabled women and men with disabilities. In comparison to non-disabled women and men with a disability, women with disabilities are less likely to have completed basic schooling, obtain a university qualification, or successfully move from a rehabilitation program into full time employment (Frohmader 2002).

There continues to be a profound silence around the experiences of violence among women with disabilities, despite the fact that violence against women with disabilities has been identified as not only more extensive than amongst the general population but also more diverse in nature than for women in general. Women with disabilities are at greater risk of physical, sexual, and emotional abuse as well as to other forms of violence, such as institutional violence, chemical restraint, drug use, unwanted and unlawful sterilisation, medical exploitation, humiliation, and harassment. Women with disabilities are often forced to live in situations in which they are vulnerable to violence. They are more likely to experience violence at work than other women or men with disabilities. Legislation, services, policies and programs continue to fail to respond to women with disabilities experiencing violence (Frohmader 2002, WWDA 2004, Howe 2002).

Despite the fact that ‘the right to bodily integrity and the right of a woman to make choices about her reproduction’ are enshrined in the United Nations Declaration on Human Rights, women and girls with disabilities in Australia continue to be denied their human rights to make informed choices about their bodies and their reproductive lives. Women and girls with disabilities continue to be sterilised without their consent – a clear violation of their human rights, and an act of unnecessary and dehumanising violence which denies a woman’s basic human right to bodily integrity and to bear children and which results in adverse life-long physical and mental health effects. For women with disabilities, issues of reproductive health also continue to be problematic. Support for choices and services in menstrual management, contraception, abortion, sexual health management, pregnancy, birth and menopause remain inappropriate, absent or inaccessible (Dowse and Frohmader 2001, WWDA 2004).

Women with disabilities pay the highest level of their gross income on housing, yet are in the lowest income earning bracket. Women with disabilities are less likely to own their own houses than their male counterparts. Security of tenure is a major concern for women with disabilities, particularly in private rental accommodation. Women with disabilities have reported considerable levels of discrimination against them by private landlords. Despite the fact that women with disabilities are one of the groups at the highest risk of homelessness in Australia, they experience great difficulty accessing supported accommodation, including crisis services such as women’s refuges. Women with disabilities are more likely to be institutionalised than their male counterparts (Frohmader 2002, WWDA 2004).

Women with disabilities experience difficulty accessing health information and services, particularly in relation to issues such as: managing menstruation, contraception, exploitative relationships, violence, sexually transmitted diseases, sexual assault, menopause, late onset incontinence, osteoporosis, sexuality, reproductive health, self-management, fatigue, increased dependency, and parenting. Women with disabilities have less access to breast and cervical screening programs and services than any other group of women. The vast majority cannot receive these services because of economic, social, psychological and cultural barriers that impede or preclude their access to breast health and cervical screening services. Women with disabilities experience significantly higher rates of depression and anxiety than men with disabilities. The general health system has, and continues to ignore the needs of women with disabilities. Women with disabilities spend more of their income on medical care and health related expenses than men with disabilities (Frohmader 2002, Salthouse and Howe 2004).

Women with disabilities continue to experience denial of their desire to become mothers through coerced sterilisation, contraception or abortion; lack of access to information and services; discrimination if they have attempted to adopt children or become foster mothers; along with the hegemonic effects of the widespread belief that women with disabilities cannot and should not bear and raise children. When women with disabilities do become mothers they encounter many difficulties because the non-disabled world assumes that the disability makes them unfit to be mothers. Many lose custody of their children in divorce while others may have their children removed from their care by social welfare agencies, solely on the grounds that they have a disability (Frohmader 2002).

Women with disabilities have a consistently higher level of unmet need but are less likely to receive appropriate services than men with equivalent needs. 60% of recipients of disability support services funded under the Commonwealth/State Disability Agreement are men with disabilities. Women with disabilities are unable to get the level of attendant care services they require to meet their needs. Attendant care is virtually non-existent in the workplace. This prevents those women with disabilities who require attendant care at their place of work from seeking employment (Frohmader 2002, WWDA 2003).

Access to telecommunications is a major area of inequity for women with disabilities in Australia. A national survey in 1999 found that 84% of women with disabilities are restricted in their access to telecommunications. Restrictions include affordability; poor equipment design, lack of training; lack of information; and discrimination. Given the importance of the telephone as a form of communication for many women this lack of access is critical in considering the social isolation of women with disabilities (WWDA 2000).


11. Issues Requiring Action in the NAP to Address the Human Rights of People with a Disability

This section of WWDA’s submission gives a general overview of some the issues requiring action in the Australian National Action Plan on Human Rights to address the human rights of people with a disability. It is by no means an exhaustive list, however it does highlight some of the serious omissions in the current Draft National Action Plan. WWDA believes that meaningful consultation needs to occur with the disability sector and other relevant stakeholders as a matter of urgency in order to:

  • Indicate clearly what the current human rights situation is for people with disabilities in Australia;
  • Identify what problems need to be overcome;
  • Identify priority areas for action;
  • Specify what action will be taken (in terms that provide benchmarks for the evaluation of progress);
  • Specify who is to take the action;
  • Establish a firm time frame in which action will be taken; and
  • Provide for effective monitoring and evaluation of what has been done.

11.1. Need for baseline Data and an Assessment of the Current Situation

There are no social indicators provided in the Draft National Action Plan on Human Rights, nor is there any data provided to even give an indication of the number of people with a disability in Australia. The Australian National Action Plan on Human Rights should contain baseline data and should include a gender breakdown. For example, we know that in 2003, there were 3.9 million people in Australia with a disability (one in five), making up 20% of the total population. The proportion of males and females with a disability is similar (around 10% each) although it varies across age groups, with more women with disabilities in the older age cohorts (ABS 2003). Of those with a disability, 87% (3.2 million) experience specific restrictions in core activities, schooling or employment (ABS 1998).

The current Draft National Action Plan on Human Rights does not provide an assessment or analysis of the current human rights situation of people with disabilities in Australia. The Draft NAP does not give any indication of what the current situation is for people with disabilities; or what problems need to be overcome for people with disabilities in order for them to experience full enjoyment of human rights and fundamental freedoms. Additionally, there is nothing in the Draft NAP to indicate where Australia needs to improve in its performance in human rights for people with disabilities.

11.2. Multiple discriminations caused by the intersection of gender and disability

Women with disabilities in Australia remain not only one of the most socially disadvantaged groups in society, but also clearly one of the most marginalised, neglected, excluded and isolated. Australia’s National Action Plan on Human Rights should therefore make explicit recognition of the impact of multiple discriminations caused by the intersection of gender and disability by emphasising that women and girls with disabilities suffer particular disadvantages, including marginalisation and multiple discrimination, and that specific measures are needed to ensure full and effective enjoyment of their human rights and fundamental freedoms and full participation on the basis of equality.

11.3. Violence and Abuse of People With Disabilities

Given the pervasive nature and increased incidence of all forms of violence against people with disabilities, it is extraordinary that the Draft National Action Plan on Human Rights contains not one reference to this issue. Furthermore, the alarmingly high rate of violence against women with disabilities, coupled with the serious failure of legislation and services to respond to women with disabilities experiencing violence, warrants particular and urgent attention, and must be included as a priority in Australia’s National Action Plan on Human Rights.

11.4. Unlawful Sterilisation of Women and Girls with Disabilities

The Australian Government’s Standing Committee of Attorney’s-General (SCAG) has recently agreed to the development of proposed legislation regarding the authorisation of the non-therapeutic sterilisation of minors with a decision-making disability. WWDA has recently (May 2004) submitted a response to the SCAG Issues Paper on the proposed legislation. WWDA does not support the Government’s current proposal to develop a nationally consistent approach to the authorisation procedures required for the lawful sterilisation of minors with a decision-making disability. WWDA strongly recommends that the Federal Government develop universal legislation which prohibits sterilisation of children except in those circumstances which amount to those that are a serious threat to health or life. In the case of adults, WWDA also strongly recommends that sterilisation be prohibited in the absence of the informed consent of the individual concerned, except in those circumstances where there is a serious threat to health or life.

WWDA is concerned that the Draft NAP does not contain any reference to the unlawful sterilisation of women and girls with disabilities in Australia, despite the fact that unlawful sterilisation is an act of unnecessary and dehumanising violence and a gross violation of a woman’s human rights. Clearly then, the unlawful sterilisation of women and girls with disabilities must be included in Australia’s National Action Plan on Human Rights.

11.5. The abuse of people with disabilities living in institutions

An important issue in the consideration of priorities within a National Human Rights Action Plan is the human rights situation of vulnerable groups, given the need to incorporate fundamental norms of equality and non-discrimination effectively in the Plan. People with disabilities living in institutions are clearly one of the most vulnerable groups in our society. Disabled people in institutions continue to live in appalling conditions and suffer ongoing abuse and degradation of their basic human rights. This situation must be addressed within the Australian National Action Plan on Human Rights.

Despite the fact that there have been many reports in Australia of neglect, mistreatment, discrimination and abuse of disabled children and adults in state-run institutions, there has been an alarming lack of action and resources to address the problem.

The abuse of people with disabilities living in institutions demands urgent attention and must be included in Australia’s National Action Plan on Human Rights. At the very least, the Plan should include as a major strategy, a Public Inquiry or Royal Commission into the abuse of people living in institutions, both historically and currently.

11.6. The development and adoption of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities

In November 2001, the United Nations (UN) General Assembly established an Ad Hoc Committee (AHC) to ‘consider proposals for a comprehensive and integral convention on the rights and dignity of persons with disabilities.’ This action came after many years of advocacy by the disability community for the inclusion of disability in the UN human rights legal framework. The AHC met for the first time in July 2002, deciding that regional consultations should be held, and that the Committee should meet again the following year. When the AHC re-convened in June 2003, the first three days yielded consensus that a convention was indeed needed and that work on drafting a convention should be started. The AHC then focused on establishing a special working group to draft a treaty text for consideration by the Committee in 2004. The Working Group met in New York from 5-16 January 2004 and produced a Draft Text for a Convention. The Draft Text forms the basis for negotiations by Member States at the third session of the Ad Hoc Committee which took place from 24 May to June 2004. There will also be a fourth session of the Ad Hoc Committee from 23 August to 2 September 2004 (NCD 2004; Landmine Survivors Network 2004). The Australian Government has attended these various meetings, along with Australian NGO delegates.

Over 600 million people, or approximately 10 per cent of the world’s population, have a disability of one form or another. Over two thirds of them live in developing countries. Only 2 per cent of disabled children in the developing world receive any education or rehabilitation. The link between disability and poverty and social exclusion is direct and strong throughout the world (Quinn and Degener 2002). There is no doubt that there are widespread and serious violations of the human rights of persons with disabilities, as well as failures to promote and fulfill their rights (Byrnes 2003).

The Australian disability movement has strongly articulated its support for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, and has called on the Australian Government to:

  • Formally support the development and adoption of such a Convention; and,
  • Establish meaningful processes to enable people with disabilities to participate in the development of a Draft Convention on the rights and dignity of persons with disabilities.

Australia’s commitment to the development and adoption of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities must be incorporated into Australia’s National Action Plan on Human Rights, along with detailed strategies as to how this will occur.

11.7. Access to Justice for People with Disabilities

Disabled people continue to be significantly over-represented in police lock ups, courts and prisons. Research has found that people with an intellectual disability make up 12-13% of prison population, that is, approximately four times that of the general population (Disability Council of New South Wales, 2000; NSW Law Reform Commission 1996). Research has also found that 40% of woman inmates have a psychiatric disability (Disability Council of New South Wales, 2000). Available evidence suggests that people with disabilities, particularly people with cognitive disabilities are over-represented in the criminal justice system – as both victims of crime and as alleged offenders.

In its Review of the Disability Discrimination Act, the Productivity Commission recommended that the Attorney General should commission an Inquiry into access to justice for people with disabilities, with a particular focus on practical strategies for protecting their rights in the criminal justice system (Productivity Commission 2003).

The over-representation of people with disabilities in the criminal justice system demands urgent attention and must be included in Australia’s National Action Plan on Human Rights. The Plan should include as a major strategy, an Inquiry into access to justice for people with disabilities, with a particular focus on practical strategies for protecting their rights in the criminal justice system, as recommended by the Productivity Commission in 2003.

11.8. Access to Health Services for People with Disabilities

The Human Rights and Equal Opportunity Commission (HREOC) recently conducted a National Forum on Health Access for People with Disabilities (May 28, 2004). This Forum was convened by HREOC in recognition of the vast inequities and discrimination experienced by people with disabilities in relation to access to health services in Australia. This issue is clearly a human rights issue.

In his opening address to the National Forum on Health Access for People with Disabilities (May 2004) HREOC Commissioner Sev Ozdowski stated in part:

‘I should acknowledge Women With Disabilities Australia for providing the initial stimulus for today’s meeting when they requested that the Commission consider conducting a public inquiry on access to breast and cervical cancer screening services for women with disabilities.’

Women with disabilities often have less access to breast and cervical screening programs and services than any other group of women. The vast majority of women with disabilities cannot access these programs because of economic, social, psychological and cultural barriers that impede or preclude their access to breast health and cervical screening services.

WWDA believes that Australia’s National Action Plan on Human Rights must include the discrimination experienced by people with disabilities in relation to access to health services in Australia. A process of meaningful consultation with people with disabilities will assist in determining strategic priorities in this area. However, Australia’s National Action Plan on Human Rights should include as a major strategy, the conducting of a Public Inquiry into Access to Breast and Cervical Screening for Women with Disabilities in Australia.

11.9. Independent audit of Australia’s compliance with the Standard Rules on the Equalization of Opportunities for Persons with Disabilities

Among the major outcomes of the Decade of Disabled Persons was the adoption, by the UN General Assembly, of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in 1993. Although not a legally binding instrument, the Standard Rules represent a strong moral and political commitment of Governments to take action to attain equalization of opportunities for persons with disabilities. The rules serve as an instrument for policy-making and as a basis for technical and economic cooperation.

The purpose of the Rules is to ensure that girls, boys, women and men with disabilities, as members of their societies, may exercise the same rights and obligations as others. In all societies of the world there are still obstacles preventing persons with disabilities from exercising their rights and freedoms and making it difficult for them to participate fully in the activities of their societies. It is the responsibility of States to take appropriate action to remove such obstacles. Persons with disabilities and their organizations should play an active role as partners in this process. Special attention may need to be directed towards groups such as women, children, the elderly, the poor, migrant workers, persons with dual or multiple disabilities, indigenous people and ethnic minorities. In addition, there are a large number of refugees with disabilities who have special needs requiring attention.

Australia’s National Action Plan on Human Rights should include as a major strategy, an independent audit of Australia’s compliance with the Standard Rules on the Equalization of Opportunities for Persons with Disabilities.

11.10. Unmet Needs of People With Disabilities

There is general acceptance in government circles and the wider community that there is a significant problem of unmet need with respect to the provision of support and assistance for people with disabilities. The 1998 ABS Survey of Disability, Ageing and Carers found some 24 000 people with a profound or severe disability who received no assistance at all. Further, more than 41 000 primary carers were found to be also receiving no support or assistance.

In 2002, the Australian Institute of Health and Welfare (AIHW) completed a major study into the unmet need issue (Unmet Need for Disability Services) and it found that, despite some additional funding being added via the Commonwealth/State Disability Agreement (CSDA) there were, in 2001:

  • over 12,500 people still in need of accommodation and respite services;
  • over 5,400 people needing employment support;
  • over 8,200 places required for community access services;

The AIHW also found that ‘the overall service system for people with disabilities is under pressure’:

  • there were an estimated 23,600 primary carers of people with disabilities aged under 65 who reported that they had never received respite but needed it, and a further 17,000 who had received it at some stage but needed more;
  • There are high numbers of people with disabilities using services for the homeless. Disability-related pension recipients accounted for 17% of all Supported Accommodation Assistance Program (SAAP) clients in 1999-00;
  • Disabled people with ongoing needs for assistance in self care, mobility or communication are growing in number and ageing. Between 2000 and 2006, it has been estimated that those aged under 65 years will increase by 9%, those aged 15-64 years by 12%, and the group aged 45-64 years will increase in number by 19.3% or 59,500 people;
  • Transport is a basic need which, if not met, can preclude participation in the workforce, day programs or community activities generally. Transport which was formerly commonly part of the service (for instance, clients were transported to community access) now is an extra, with costs attached;
  • Equipment and environmental modifications are potentially important for promoting autonomy, as a source of carer assistance and for ‘prevention’ of high needs for personal assistance. Systems for the provision of equipment appear to be nationally fragmented.

It is clear that the significant problem of unmet need with respect to the provision of support and assistance for people with disabilities warrants urgent attention, and must be included as a priority in Australia’s National Action Plan on Human Rights.

RECOMMENDATION 6

In relation to addressing the human rights of people with a disability within the Australian National Action Plan on Human Rights, WWDA recommends that meaningful consultation occur with the disability sector and other relevant stakeholders as a matter of urgency in order to:

  • Ascertain the current human rights situation for people with disabilities in Australia;
  • Identify what problems need to be overcome;
  • Identify priority areas for action;
  • Specify what action will be taken (in terms that provide benchmarks for the evaluation of progress);
  • Specify who is to take the action;
  • Establish a firm time frame in which action will be taken; and
  • Provide for effective monitoring and evaluation of what has been done.

 

 

RECOMMENDATION 7

In relation to addressing the human rights of people with a disability within the Australian National Action Plan on Human Rights, WWDA recommends that the Plan:

    • a) Include baseline data and an assessment of the current human rights situation of people with disabilities in Australia;

 

    • b) Make explicit recognition of the impact of multiple discriminations caused by the intersection of gender and disability;

 

    • c) Address as a priority, violence against people with disabilities, with particular and urgent attention to the alarmingly high rate of violence against women with disabilities;

 

    • d) Address as a priority, the unlawful sterilization of women and girls with disabilities. This must be done in the context of unlawful sterilization of women and girls with disabilities as an act of unnecessary and dehumanising violence and a gross violation of their human rights;

 

    • e) Address as a priority, the abuse, neglect, mistreatment, and discrimination of people with disabilities living in institutions. At the very least, the Plan should include as a major strategy, a Public Inquiry or Royal Commission into the abuse of people living in institutions, both historically and currently;

 

    • f) Clearly articulate formal support for the development and adoption of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, along with the processes required to enable people with disabilities to participate in the development of the Convention;

 

    • g) Urgently address the over-representation of people with disabilities in the criminal justice system. The Plan should include as a major strategy, an Inquiry into access to justice for people with disabilities, with a particular focus on practical strategies for protecting their rights in the criminal justice system, as recommended by the Productivity Commission in 2003;

 

    • h) Include strategies to address the discrimination experienced by people with disabilities in relation to access to health services in Australia. The Plan should include as a major strategy, the conducting of a Public Inquiry into Access to Breast and Cervical Screening for Women with Disabilities in Australia;

 

    • i) Include as one strategy to assess the human rights situation of people with disabilities in Australia, an independent audit of Australia’s compliance with the Standard Rules on the Equalization of Opportunities for Persons with Disabilities;

 

  • j) Urgently address the significant problem of unmet need with respect to the provision of support and assistance for people with disabilities in Australia.

 

 


12. References

Australian Bureau of Statistics (2004) Disability, Australia (4446.0): Preliminary results on disability from the 2003 Survey of Disability, Ageing and Carers; ABS, Canberra.

Australian Bureau of Statistics (1993) Disability Ageing and Carers 1993: Summary of Findings (Cat No 4430.0), Australian Government Printer; Canberra.

Australian Bureau of Statistics (1998) Disability Ageing and Carers 1998: Summary of Findings (Cat No 4430.0), Australian Government Printer; Canberra.

Australian Bureau of Statistics (2002) Australian Social Trends 2002: Health – Mortality and Morbidity: Mortality of Aboriginal and Torres Strait Islander peoples. Accessed on line: http://www.abs.gov.au/Ausstats/abs@.nsf/0/cd784ff808c14658ca256bcd008272f6?OpenDocument

Australian Government, Department of Foreign Affairs and Trade, June 2004 – accessed on line June 2004: http://www.dfat.gov.au/hr/nap/natact_plan.html

Australian Institute of Health and Welfare (AIHW) (2002) Unmet Need of Disability Services: Effectiveness of Funding and Remaining Shortfalls; AIHW Cat. No. DIS 26, Australian Institute of Health and Welfare (AIHW), Canberra.

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