‘Toward the Adoption of a UN Convention on theRights of Persons with Disabilities in Australia’


A Paper written and presented by Helen Meekosha for Women With Disabilities Australia (WWDA) to the International Forum on Disabilities, Osaka, Japan, October 2002. Copyright 2002.


Abstract

Despite Australia’s early strong support for and activism in the United Nations, over recent years a conservative national government has drawn back from proactive engagement with new international covenants. In addition the Australian government’s scepticism about earlier agreements has been demonstrated in areas such as refugees and women. In recent months the Australian government has further distanced itself by demonstrating a reluctance to support UN initiatives on rights of persons with disabilities. This does not mean that the population more widely shares the same views, as legislation by progressive governments over the past twenty years has promoted rights for persons with disabilities. This paper argues that the very reluctance of the national government foregrounds the critical role that international conventions can play for the well being of disabled citizens.

The positive outcomes for other human rights groups in Australia, such as women and indigenous people, of international conventions can be clearly seen. As early as 1967 the decision of the government to sign the International Convention on the Elimination of All Forms of Racial Discrimination, set the ground for a national referendum on Indigenous Rights which had been advocated by indigenous groups and their supporters for many years. This referendum received overwhelmingly support across the country. The mirror that UN conventions use to reflect back to societies their own practices within a world community can stimulate on-going internal debate for NGOs and in civil society, and normalise a process of continuing reform and improvement.

Women with Disabilities Australia has been involved in national summits of disability organisations, and continuing dialogues with other domestic human rights bodies and the national government. WWDA has already seen the value of CEDAW for advancing policy reform around the reproductive rights of women with disabilities. It is clear that a disability convention is critical to ensure the full range of rights for disabled women can be realised, as the experience of negotiating issues for disabled women requires both gender and disability awareness.


Introduction

The growing importance of international human rights agendas has paralleled globalisation, often discomforting nation states that in the past had espoused their commitment to rights but avoided their implementation. Globalisation has created the potential for action on rights of people with disabilities around the world – developing networks of international support against potentially recalcitrant national governments. This paper explores the context for disability rights in Australia as part of these global developments, and in particular, the role of Australia in the promotion of the UN convention, and the role of the Convention process in Australian disability rights politics.

Western capitalist nations have been confronted by major global changes that have pressed the tensions between national sovereignty and international collaboration. On the one hand this has led to some nation states asserting their separation from the global community through claims to domestic autonomy, and on the other an expression of a growing reluctance to recognise claims to apparently new realms of minority rights within the national political and economic context. Disabled people are centrally affected by these processes, as the latest significant arrival on the rights scene, and as a potentially “costly” clientele for improved participation in national agenda setting and resource allocation. Australia provides an exemplary case for these processes to be explored through the changing dynamics of rights at the national and international levels.

This paper will firstly outline the recent history of Australia’s engagement with the international human rights agendas, through action by governments and citizens, and through the changing perspective of Australia on the international treaty system. Then it will detail the situation in relation to disability rights and the areas of tension and unresolved policy. Finally it will address the case for a UN Convention on Disability Rights, taking into account the current Australian government’s perspective, and the reflections of disability activists on the legislative and administrative strategies on disability rights in Australia over the past decade.


Australia, government and international human rights

Australia was one of the most active participants in the founding of the United Nations. It played a key role in the development of the Charter, and was a significant contributor to the Universal Declaration drafting process. This was an extraordinary turn-around for a nation that had been isolated and inward-looking for much of the first half of the twentieth century, and was still reluctant to engage with its own colonial history and post-colonial heritage of subjugation of its Indigenous peoples. The period of the late 1940s saw Australia recognise the implications of the early stages of post-war globalisation, and the importance of an international system of treaties to deter aggression and support liberty. As early as 1967 the decision of the government to sign the International Convention on the Elimination of All Forms of Racial Discrimination, set the ground for a national referendum on Indigenous Rights which had been advocated by indigenous groups and their supporters for many years. This referendum received overwhelmingly support across the country, though the legislation that was later passed (Race Discrimination Act 1975) did not make specific reference to the UN convention, and is highly vulnerable to government amendment and exemptions.

So despite these earlier initiatives, the situation today appears to have become quite contradictory – as human rights lawyer Hilary Charlesworth has argued, “Australia is a party to all major UN human rights treaties; but this has not had much direct impact on Australian law. Indeed, Australia appears to be Janus faced with respect to human rights treaties” (Charlesworth 2002):56. Australia has argued that its legislative and common law provisions protect the essential freedoms defined by UN Conventions, and therefore no additional legislation has been necessary. Whilst Australia is a signatory to Convention on Racial Discrimination and the Convention on the Rights of the Childthere is no corresponding domestic legislation. Australia remains the only Western common law country with no Bill of Rights, with established legal rights always at risk of being overturned.

The recent threats to amend the Sex Discrimination Act are a case in point. The proposal by the government was to enable discrimination against women on the basis of marital status in access to IVF technologies (1). This would have had the effect of excluding unmarried and lesbian couples.

In recent times in relation to refugees and Indigenous people, Australia has been found in breach by the UN of its treaty obligations; in such cases governments have refused to accept the findings as legitimate. A major such case has been the decision of government to abolish certain Indigenous land rights through the Native Title Amendment Act 1998 and thereby override the Race Relations Act to ensure that the action could not be considered racist in domestic law, whatever the UN perspective.

In 1996 during the Federal election campaign, the coalition conservative parties (which became the government at that election) argued that the international community had far too much influence over Australian domestic agendas – and that the power of the national government to override domestic politics through signing international conventions was being constrained. It was in this mood that the new government established a treaty review system, which allowed the articulation by ultra-nationalist voices of antipathy to UN conventions. At the same time Australia had become increasing lackadaisical in the reporting of its activities to the UN committees monitoring the implementation of treaties and undertakings by nation states.

Government has increasingly sought to minimise the opportunities for NGOs to have their voices heard at the international level, a process that has in the past been crucial to enhancing human rights at a domestic (national) level. Senior government ministers have argued that the treaty system is in need of a complete overhaul, in order
‘to ensure adequate recognition of the primary role of democratically elected governments and the subordinate role of non government organisations (NGOs)’ (The Hon. Alexander Downer MP Minister for Foreign Affairs, The Hon. Daryl Williams MP Attorney-General et al. 2000).

According to Oxfam Community Aid Abroad, the Australian Government’s call
‘shifts the position from one of cooperation to one of unnecessary hostility… By undermining the position and credibility of NGOs, Australia is providing tacit support to governments whose appalling human rights records are exposed by these organisations. Further, it suggests to the Australian community that these organisations have in some way breached, or weakened, the democratic processes of the country.’ (Oxfam Community Aid Abroad 2000).

Such a position has clear implications for disability NGOs, which are under-researched, compared with the traditional disability charities and service providers. They are heavily dependent on volunteer labour, shoulder the high costs of participation and have few sources of revenue other than government grants to draw on.

By 2000, in a context where the UN had identified four separate treaty areas in which Australian law and practice was incompatible with its treaty obligations, the government brought down its own four point plan to reform the UN treaty system. In effect these “reforms” reflected Australia’s growing embarrassment in the international arena, and the anger by conservative politicians at being critiqued by representatives of nation states with supposedly poor human rights records of their own. The four point plan reduced Australia’s reporting regime to one based on the choices made by the government; reduced the visits by UN bodies to those where Australia would identify a compelling reason; closed off UN intervention in the expulsion of asylum seekers; and refused to allow Australian women to appeal under the Optional protocol to CEDAW to the UN when gender rights procedures in Australia failed (Evatt 2001).


Australian citizens in the global human rights arena

The coming of globalisation is not just an economic phenomenon. It has resulted in many citizens joining NGOs to fight global and local inequalities. The rapid rise of new communication technologies has allowed these citizen movements to organise and spread information across national boundaries. While Australian governments have been increasingly reluctant to perform as good international citizens, Australian citizens have sought to use the emerging global citizenship, that has in part been provided through UN treaties, to advance rights limited by governments, and to redress injustices legitimated under national or state laws.

The first significant case taken under UN treaties concerned an appeal by a Tasmanian gay activist (backed by national and international gay and lesbian activism) against the criminalisation of homosexual acts. This appeal to the UN Human Rights Committee resulted in a finding that the Tasmanian law put Australia in breach of the International Covenant on Civil and Political Rights. The appellant used the First Optional Protocol that the national Labor government had acceded to in December 1991. The finding of a breach in 1994, resulted in the national Government passing an Act that specifically referred to the UN Covenant and prohibited arbitrary interference with certain freedoms defined in the Covenant.

The role of this Optional protocol demonstrated to conservatives the danger of such mechanisms, and underwrote the later decision of the conservative Government to resist calls for a similar Protocol in relation to the rights of women (CEDAW). This was to be framed in terms of antipathy to “interference from a remote body” (Tenbensel 1996). The human rights issues raised by the refusal to sign the CEDAW Optional Protocol has nevertheless provided an opportunity for rights activists to debate the limits of national legislation and to demonstrate the importance of human rights as a process of group advancement, as much as a series of specific rights for redress against individual acts of discrimination.

A further example of these issues can be found in the 2002 decision of the Australian government, at the stroke of midnight and bending to the strong community pressure in support of the proposal, to sign on to the creation of the International Criminal Court, despite deep conflict within the coalition parties, and pressure from the USA to stand apart from the process. At the time of writing Australia has not yet decided whether to sign a bilateral agreement with the USA to exclude cases that might involve US citizens before the ICC. The debate foregrounds the importance of an international framework for the holding to account of major violators of human rights, where national laws had been evaded or were proved to be inadequate.

Perhaps the best example of the indirect role that the UN can play in Australian human rights is demonstrated in the processes through which Indigenous people have participated in developing a rights framework with the UN. Despite Australian government reluctance to recognise Aboriginal claims to autonomy and pre-existing sovereignty, Indigenous NGOs have been able to advance their agendas at the global level, through alliances with other native peoples (such as the Inuit) in the deliberations of the UN committees. In part the on-going developments have been sustained by the recognition in the UN of the principles of self-determination of minority peoples, carried forward by Indigenous groups with a certain level of their own independent resources. Thus the call on global rights values by Indigenous people has allowed them to bypass blockages placed in their path at the national level, where in Australia these values have not been legitimated by government action.

The global rights environment remains heavily dependent on global media and communications to promulgate claims and report actions and reactions internationally. The capacity for autonomous campaigns allows groups suppressed in their own national arenas to gain political leverage by calling on international community support.


Disability and Human Rights in Australia

“…in terms of concrete effects the current situation that faces disabled people [in Australia] appears little different from that which preceded the DDA[Disability Discrimination Act]” (Handley 2001) : 522

Australia has been strongly affected by international human rights discourses in the past. This is also true in relation in to disability. The primary agency at the national level is the Human Rights and Equal Opportunity Commission (HREOC). It was not until 1992 that the national government passed a Disability Discrimination Act that would clarify and protect disabled people against discrimination. Various states had local legislation for a period before this time. The legislation was very wide-reaching, extending beyond the US American with Disabilities Act (1990) in terms of coverage, and introducing alternative strategies such as action plans and sector (transport, education etc.) disability standards (Jones and Marks 1999).

A decade into the implementation of the Act there is considerable debate about its value and the benefits and costs associated with it for disabled people. The Act has established a two part regime – one of processes of individual complaints, a major defence to which is the concept of reasonable accommodation; the second a series of institutional action plans which serve as a type of facilitation process for access. These are not mandated outside government, and they are rarely monitored within government, as there are no penalties for non-compliance. The two “standards” that have been under development are both controversial – the transport standard will not come into final effect for 20 years, and there are significant exemptions negotiated by the industry.

The education standard has been the target of sustained delaying tactics by some state governments and private education providers. Indeed individual actions have raised the issues (and may have hardened opposition to the Act) within schools, teacher unions, and Education bureaucracies, rather more effectively than the continuing but unresolved debate on standards has managed to achieve.

These cases take an enormous amount of energy, extensive resources, and organisational support. However energy, resources and organisational support do not epitomise the disability movement. Handley, in his analysis of the DDA, has concluded that the declining number of complaints are not a function of improved access, but rather the consequence of “the confluence of delays in the Commonwealth enforcement process brought about by financial cutbacks that have led to disillusionment with the process among disabled people” (Handley 2001): 526.

Whilst there is a degree of support for the proposed UN convention in Australia, clearly there is danger in relying on the UN mechanisms to bring an end to disability discrimination. International law experts argue for the importance of pressing for strong realisation of human rights within the domestic framework. (Triggs 2001)


Towards a UN Convention: Australian perspectives

The emergence of an international debate over the need for a Convention on disability rights has evoked from the Australian government a careful strategy of support for the idea and avoidance of the implementation. Australia voiced reservations about the first attempt at such a Convention, sponsored by Italy amongst others, in 1987, expressing concern at the potential financial implications.

It is possible that the 1987 global meeting to review the implementation of the World Program of Action concerning disabled people (at the midpoint of the decade of disabled people) may well have prompted the Australian government to initiate its own legislative process, predicated on limiting the government and industry’s financial exposure. Indeed the DDA that emerged from this decade, whatever its rights concerns, primarily operates as a vehicle to protect organisations from “excessive” claims and extensive expenditure on adaptive environments.

The nature of human rights for disabled people appears to differ significantly from those rights achieved for women and people of colour. Disability rights come cloaked with limitations, exclusions and exemptions. The underlying abled-bodied “norm” effectively continues to dominate the thinking in this area – though the male norm and the white norm have been dissolved. Reasonable accommodation and undue hardship both contain a sense of a limit to rights often judged by the able-bodied from their perspective. Disabled people are rarely asked to express their view on reasonableness. Goals such as independent living, are “best fit” pathways, that seek to balance the competing priorities of the disabled individual and the provider of the service or employment they are seeking – thus action on disabilities seems to be more about policy and less about fundamental rights.

Over the past year as the groundswell of support for a UN Convention has increased, Australia has become more prominent in indicating its reluctance to advance the agenda for such an instrument, expressed as absence from active support, a diplomatic signal of opposition. At the New York meeting to discuss the Convention in July/ August 2002, the Australian delegation of government officials (no Australian disability NGO delegates attended nor were invited by the Australian government to participate) emphasised that the states should ensure that deliberations on the convention “are measured and considered” and that proposals “draw upon existing instruments to prevent duplication”. Australia was supportive of the work done by the UN High Commissioner for Human Rights but noted that the convention development process would require “extensive consultations” between governments and stakeholders, including people with disabilities. (Landmine Survivors’ Group 2002). Interestingly, in reaching this position the Australian government had neglected to consult with any Australian NGOs from the disability community.

The Australian disability movement has been marginalised by the government in the development of a national position on the Convention – probably because the government policy remains one of minimising its involvement with any new UN treaties. Thus there is little awareness or debate about the convention. This does not mean that the disability community is unaware or uninterested in human rights issues. Indeed human rights abuses are at the forefront of disability NGO concerns, and national disability peak organisations have pursued human rights issues in the broader NGO human rights context. A major player in advancing human rights concerns has been the national Women with Disabilities Australia (WWDA), a peak organisation.


Women with Disabilities

Women with Disabilities Australia (WWDA) has been involved in national summits of disability organisations, and continuing dialogues with domestic human rights bodies and the national government. The existence of a Convention on the Elimination of Discrimination against Women (CEDAW) has stimulated and furthered debate at a national level concerning the rights of women. Unlike many other conventions, CEDAW does make mention of disability, enabling disabled women at the 4th World Conference of Women held in Beijing to argue strongly for a specific convention for disabled people. Furthermore, CEDAW has required the government to account to the UN monitoring body; as a consequence the government has had to consult with women with disabilities in order to meet the reporting criterion. In general though, women with disabilities, situated as they are at the margins of debate, are often over looked. Therefore a UN Convention on the Rights of Persons with Disabilities together with the CEDAW would most likely strengthen the position for women with disabilities in the long term.

One of the most pressing issues affecting women with disabilities in Australia and, indeed, world wide, is forced sterilisation and violation of reproductive rights. In 2001, with the support of the Sex Discrimination Commissioner, WWDA ran a major project which included a national speak out for women with disabilities on this issue. (Dowse and Frohmader 2001) The speakout uncovered serious human rights violations and called for an end to these practices. However the government has shown itself reluctant to move on the issues to foreground the subject decisions of the woman with disability – rather it has focussed on ensuring that procedures are followed correctly in relation to sterilisation of minors and “consideration of jurisdictional issues”. Rather than confronting the medical establishment, the government has simply drawn the attention of doctors to the situation through a letter to medical colleges – seeking to ensure the legalities are followed, rather then placing the individual rights of the woman at the top of the agenda. (Letter from Attorney General’s Department to WWDA 30 August 2002).

The proposed convention needs to take account of these issues disabled women have raised, as well as learning from the lessons of CEDAW. For example, there are clear tensions between strategies that seek to prevent disability (such as sterilisation) (Mathiason 2002) and the desire and right of women with disabilities to reproduce. A convention that did not recognise this tension, and privilege the rights of the individual over the desire of a society to prevent their reproduction, could lead to a serious erosion of rights for women (generally protected under other conventions).

Women argue politically that human rights violations can also occur in the private sphere; in the home, the family and the institution, as evidenced by the above discussion on sterilisation and reproductive rights. Obligations by states to address these issues are included in the CEDAW and should also be extended to any strategies to address disability discrimination.


The need for a UN Convention

Over the past two decades disability has been reframed as a human rights issue rather than as a welfare issue, with NGOs and disability movements taking a prominent role in this process. As a result of increasing globalisation people with disabilities are no longer isolated within the nation state. Yet a global world economy remains problematic for disabled people, as it appears to be leading to greater, not less, economic inequality. Disabled people are being further marginalised as a result of the expansion of free market economies and the withdrawal of governments in industrialised countries from the welfare state. Increasingly they provide a pool of exploitable or reserve labour power and work in conditions in the developed world similar to the sweat shop zones in the third world.

However globalisation also provides opportunities for restructuring the social, economic and political relations of disability through a globalised disability movement. In Australia, disability movement activists daily make international links with other NGOs to obtain the information necessary to make claims on national government and multinational corporations. The UN Convention will provide much of the stimulus needed to focus on building such a globalised disability movement.

Yet the Convention can be only one part of a process of building international solidarity and awareness. A Convention may lead to the sorts of meetings for disabled people, that women had in Beijing – an arena to test out claims to progress by governments, and opportunities for cross-national collaboration by women in NGOs. The Beijing conference was intimately linked to CEDAW and the many dynamics that the convention had promoted.

The most obvious need for a UN Convention on the Rights of Persons with Disabilities arises from the importance of Universal recognized standards that all states can follow and that can be monitored (the Standard Rules have been inadequate in this regard, not being binding on member states). Thus the Convention will hopefully provide direct recourse for individuals whose rights have been violated. At a symbolic and ideological level a Convention will help restore subjectivity to disabled people, a power that has been eroded as a result of their objectification as ‘the other’. Issues of recognition and respect are as important as formal rights. It will contribute to the task of locating the problems of disability within society rather than the individual and disabled people will be in the position of being able to compare their own government’s performance against international benchmarks.

UN Conventions are not simply aimed at redressing specific violations. The existence of a Convention also allows for the possibility of alternative reporting mechanisms on behalf of NGOs and here, disabled people themselves, can generate media interest and wider community debate. The existence of reporting requirements in Australia holds up a mirror (albeit a cracked one) to society and this can further encourage debate in civil society.


Conclusions

We are therefore faced with a series of contentions that have to be brought together. A convention would clearly be of great value to disabled people in Australia, as it would facilitate the raising of issues, the confidence in seeking redress, and the development of broader policies and processes. However if such a convention institutionalises the concepts of normalisation and reinforces the constraints that limit rights, then major problems will continue to bedevil the struggle for equality.

The Australian disability community recognises that only a broad groundswell of public opinion is likely to move the government towards accepting even the limited forms of the convention that could emerge from current debates. In pursuing this convention we need to realise that the alliances required will force us into some very hard thinking and tough bargaining, especially around the contentious concepts such as reasonableness, capacity, equity, resources, and feasibility. However if we see the shared goals as being an improved quality of life and a rising sense of recognition and self-esteem for all disabled people, then these efforts are well worth making, however much our national governments may resist them.


References

Charlesworth, H. (2002). Writing in rights: Australia and the protection of Human Rights. Sydney, University of New South Wales Press Ltd.

Dowse, L. and C. Frohmader (2001). Moving Forward: sterilisation and reproductive health of women and girls with disabilities. Rosny Park, Tasmania, Women with Disabilities Australia.

Evatt, E. (2001). “Australia’s performance in Human Rights.” Alternative Law Review 26(1): 11-15.

Handley, P. (2001). “‘Caught Between a Rock and a Hard Place’: Anti-discrimination Legislation in the Liberal State and the Fate of the Australian Disability Discrimination Act.” Australian Journal of Political Science 36(3): 515-528.

Jones, M. and L. A. Marks (1999). Disability, Rights and Law in Australia. Disability, Divers-Ability and Legal Change. M. Jones and L. A. Marks. The Hague, Martinus Nijhoff. 56: 189-208.

Landmine Survivors’ Group (2002). Disability negotiations, Daily Summary, United Nations Secretariat, New York. New York, The Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities.

Mathiason, J. R. (2002). Considerations for the proposed International convention to promote and protect the rights and dignity of persons with disabilities. Mexico City, Paper presented to the Inter-regional Expert Meeting on International Norms and Standards Relating to Disabilities: Issues relating to a Comprehensive and Integral International Convention on the Rights of Persons with Disabilities.

Oxfam Community Aid Abroad (2000). Australia and the United Nations Human Rights Treaty system.

Tenbensel, T. (1996). “International human rights conventions and Australian political debates: Issues raised by the ‘Toonen case’.” Australian Journal of Political Science 31(1): 7-23.

The Hon. Alexander Downer MP Minister for Foreign Affairs, The Hon. Daryl Williams MP Attorney General, et al. (2000). Joint news release: Improving the effectiveness of United Nations Committees.

Triggs, G. (2001). Contemporary Human Rights Law and Practice. Sydney, Paper presented to the Human Rights and Equal Opportunity Commission.


Endnotes

(1) Sex Discrimination Amendment Bill (2000)