WWDA Submission to the Australian Government on the on the ‘Chairman’s Text for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’


This paper is a Submission in response to the Commonwealth Government’s (through the Department of Family and Community Services and the Attorney Generals Department) request for comments on the ‘Chairman’s Text for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’, released in late 2005. Copyright WWDA February 2005.


Recommendation

In the context of the impact of multiple discriminations caused by the intersection of gender and disability, WWDA recommends that:

the Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ must contain an Interpretive Article on Women With Disabilities, in recognition of the need to acknowledge, emphasise and address the particular disadvantages faced by women with disabilities the world over (WWDA 2004).


About Women With Disabilities Australia (WWDA)

Women With Disabilities Australia (WWDA) Inc. is the national peak body for women with all types of disabilities in Australia. It is a not-for-profit organisation constituted and driven by women with disabilities. It has a very diverse membership base, with associate members from a wide range of sectors – all who support the self-determination of women with disabilities. It is the only organisation of its kind in Australia and one of only a very small number internationally. WWDA is inclusive and does not discriminate against any disability. 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: www.wwda.org.au).


Introduction

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 has met a number of times since then, and meets again in January 2006 to focus specifically on the most recent draft of the convention developed by the Chair of the Ad Hoc Committee, Ambassador Don McKay in October 2005. This draft is known as the Chair’s Text. The Chair’s Text is an amalgamation of the proposals and debates that have taken place in the Ad Hoc Committee in 2005.

As explained by Ambassador Don McKay in his covering letter to the Chair’s Text, although there has been general agreement that disabled women are at a particular disadvantage and their situation needs to be appropriately covered by the Convention, there is no consensus as to how that will be achieved; ie: whether there needs to be a separate Article dealing with women with disabilities, or whether this could be covered in other parts of the draft convention. This fundamental issue needs to be resolved at the next Ad Hoc Committee meeting in January 2006.

Given the extremely short time frame for consultations on the Chair’s Text, WWDA’s submission is necessarily brief and focuses explicitly on provisional Article 6 – Women With Disabilities.


Gender & Disability & the Draft Convention – The Context

There are 1.9 million women with disabilities in Australia. It is widely acknowledged that they are not only one of the most socially disadvantaged groups in society, but also clearly one of the most marginalised, neglected, excluded and isolated. They are over represented in poverty and face the greatest incidence of disadvantage. They suffer triple discrimination – female, poor and disabled. 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. They are subject to exploitation in all areas of their lives. Women with disabilities 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 denied opportunities to participate in organisations, in leadership roles and training. They are discriminated against, harassed, humiliated, victimised, and vilified. Women and girls with disabilities are the most vulnerable and least protected (WWDA 2002; UN ESCAP Workshop on Women and Disability 2003)..

In this context, it is important to re-iterate WWDA’s position, clearly stated in our previous Submissions to Government on the development of a draft Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ that:

the Convention should contain an Interpretive Article on Women With Disabilities, in recognition of the need to acknowledge, emphasise and address the particular disadvantages faced by women with disabilities the world over (WWDA 2004).


The Position of Women With Disabilities Australia (WWDA)

In Australia in 2005, it remains a fact that women with disabilities 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. Negative stereotypes and discrimination against women with disabilities – on the basis of gender and as people with disabilities – compound women with disabilities exclusion from support services, social and economic opportunities and participation in community life..

Yet despite the position of disabled women in Australia, the Australian Government has decided that it will not support an Interpretive article on women with disability in the Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities.

.

Women With Disabilities Australia (WWDA) does not support the Australian Government’s position on this issue.

WWDA strongly recommends that the Australian Government heed and represent the views and aspirations of disabled women in Australia by supporting the inclusion of an Interpretive Article on Women With Disabilities in the Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities.


The Need for an Interpretive Article on Women With Disabilities

An Interpretive article on the rights of women with disabilities is a critical element of a Convention on the rights of people with disabilities, in addition to references to gender equity in the General Principles Article and the Preamble.

In relation to women with disabilities, there is clearly a need for a dual strategy approach (also often referred to as a ‘twin track’ approach) to the drafting of the Convention. This means that there is a need for general recognition of the impact of multiple discriminations caused by the intersection of gender and disability, along with specific recognition of the additional disadvantage women with disabilities face.

Including an Interpretive article on women with disabilities in the convention should not be interpreted as meaning that all other articles in the Convention do somehow ‘not apply’ to women with disability. Rather the inclusion of a specific article on women with disabilities has the potential to hasten much needed reform and change for disabled women by explicitly stating that focused, gender-specific measures WILL be necessary to ensure the equal right of women with disabilities to the enjoyment of all rights set forth in the Convention.

an Interpretive article on women with disabilities in the Convention has the potential to provide the impetus for States to:

  • Focus on the needs and particular concerns of women with disabilities;
  • Provide a basis for establishing and re-orienting delivery of services and programs to disabled women;
  • Identify policies and strategies which will provide a reference point for policy development and resource allocation;
  • Provide clear rationale for the development of specific programs;
  • Develop and maintain mechanisms which increase the participation and representation of disabled women in all decision-making;
  • Provide a basis for monitoring, evaluating and reporting progress.

Therefore, Women With Disabilities Australia (WWDA) asserts that the Convention should contain an Interpretive Article on Women With Disabilities, in recognition of the need to acknowledge, emphasise and address the particular disadvantages faced by women with disabilities the world over. Such an article should make explicit the impact of multiple discriminations caused by the intersection of gender and disability, and should explicitly state that focused, gender-specific measures will be necessary to ensure the equal right of women with disabilities to the enjoyment of all rights set forth in the Convention.

For example:

States Parties recognize that women and girls with disabilities are subject to multiple discrimination and that focused, gender-specific measures (including protective measures) will be necessary to ensure that women and girls enjoy all human rights and fundamental freedoms on the basis of equality with men and boys.

Each State Party undertakes to take all necessary measures to ensure the equal right of women with disabilities to the enjoyment of all rights set forth in this Convention.


Convention on the Elimination of All forms of Discrimination Against Women (CEDAW)

As outlined earlier, the Australian Government does not support the need for an Interpretive Article on women with disabilities in the Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities.

At the Sixth Ad Hoc Committee meeting in August 2005, the Australian Government delegation put forward its position that it did not support the inclusion of an Interpretive Article on women with disabilities in the Convention. It did however, support recognition of the particular vulnerabilities of women with disabilities in the Preamble. The Australian Government delegation argued:

‘Consideration needs to be given to the focus of the convention. Discrimination against women is specifically addressed in CEDAW and it is not appropriate for this new instrument to duplicate other major human rights treaties, particularly outside the area of disability discrimination. The potential duplication of rights will make monitoring mechanisms difficult. The potential for different interpretations of existing human rights would make the implementation of the range of human rights instruments difficult…..’

(Source: http://www.dinf.ne.jp/doc/english/rights/050802.html)

Women With Disabilities Australia (WWDA) rejects the notion that, in relation to women with disabilities, the Convention on the Rights and Dignity of Persons with Disabilities would somehow duplicate the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW).

It is well recognised the world over, that CEDAW has not, and does not, adequately address the issue of discrimination of disabled women. CEDAW has been criticised by women with disabilities and their advocates for its abject failure to acknowledge and/or respond to the human rights violations of disabled women.

CEDAW is arguably, the most important human rights treaty for women, yet it does not mention disabled women. Recognising that disabled women are not explicitly mentioned in the Convention, the monitoring body of the treaty (the Committee on the Elimination of All forms of Discrimination Against Women) passed a general recommendation on disabled women to ensure that States Parties understand that this instrument also covers the human rights of disabled women. General Recommendation 18 requests States Parties to provide information on disabled women in their periodic reports and on measures taken to deal with their particular situation, including special measures to ensure they have equal access to education and employment, health services, and social security and to ensure that they can participate in all areas of social life and culture.

The Optional Protocol to CEDAW was adopted unanimously by the United Nations General Assembly on 6 October 1999. The Optional Protocol contains two procedures: a communications procedure allowing individuals, or groups of individuals, to submit claims of violations of rights to the Committee on the Elimination of All forms of Discrimination Against Women; and an inquiry procedure, enabling the Committee to initiate inquiries into situations of grave or systemic violations of women’s rights. Individuals may make communications only if the nation concerned is a party to the protocol. As of September 2005, there were 76 signatories to the Optional Protocol.

The Australian Government has, to date, refused to sign the Optional Protocol to CEDAW, meaning that women with disabilities in Australia have effectively been locked out of using an enforcement mechanism to investigate violations of their human rights.

It is clear that despite the existence of CEDAW and in fact, other human rights treaties, women with disabilities the world over continue to experience serious violations of their human rights, as well as failures to promote and fulfill their rights.

It is widely acknowledged that the overall attention given to disability in the existing human rights treaties (including CEDAW) is still relatively limited. In reaching an assessment of how the existing treaty bodies have done, Professors Gerard Quinn and Theresia Degener, in their comprehensive study for the Office of the High Commissioner for Human Rights (2003) concluded:

“It must be frankly acknowledged that the treaty monitoring bodies will continue to have many different constituencies to keep in focus and many intractable and general issues to wrestle with. The pressure they are under is bound to increase. In other words, there is probably a limit to the extent to which these bodies can focus on disability – a limit that is explained by other pressing priorities. This is in no sense a criticism of the bodies concerned. It is simply a recognition of the reality that other matters will always compete for their attention.”

According to Byrnes (2003), it seems unlikely that the existing human rights treaty bodies would in the future be able to bring the focus and attention to disability issues that they do not now provide in a sustained manner. He states: “the case for a new convention is a compelling one if we want to achieve a satisfactory focus on disability issues at the international level, to influence national policy-making, and to stimulate greater awareness of disability issues in the existing human rights bodies”.

Signatories to CEDAW have shown scant regard for women with disabilities in their Progress Reports on Implementation of the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW). Australia is no exception.

An analysis of five States Parties Progress Reports undertaken by Quinn and Degener, found that none of the Reports reached the benchmarks for reporting on women with disabilities set under Recommendation 18 on disabled women and in the reporting guidelines (Quinn, G & Degener, T. 2002).

The Australian Government’s Report ‘Women in Australia’ (the combined Fourth and Fifth Reports on Implementing the United Nations Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) does not provide information on women with disabilities as required under Recommendation 18. The Report therefore gives a false picture of the reality of the position of women with disabilities in Australia. An example can be used to highlight:

The ‘Women in Australia’ Report states that:

‘Women and girls have made steady progress in their participation in education, training and employment, and in decision-making and leadership’

and as an example states that there has been:

‘a general upward trend in the labour force participation rate of all women (15 years and over), which was 67.5 per cent in March 2003.’ (p7).

However, in 2003 the labour force participation rate of women with disabilities was only 46.9%. The unemployment rate of non-disabled women in 2003 was 5.3% (down from 8.0% in 1998), compared to 8.3% for disabled women (virtually the same as in 1998 when the rate was 8.6%) (WWDA 2005). The ‘Women in Australia’ report provides no information at all on the status of women with disabilities in relation to employment, despite their obvious marginalisation and exclusion in the labour market. With one of the lowest rates of labour force success and one of the highest rates of poverty, women with disabilities clearly stand out as a group in need of greater opportunities for employment, yet the ‘Women in Australia’ Report does not even acknowledge the stark disparity between disabled and non-disabled women in relation to employment.

There are a multitude of other examples that can be used to demonstrate the weakness of CEDAW as it relates to women with disabilities in Australia. However, to provide a detailed analysis of CEDAW and women with disabilities, is clearly outside the scope of this Submission. What is important however, is to acknowledge that CEDAW and the way the Australian Government reports on the implementation of CEDAW, has serious shortcomings for women with disabilities.

In meeting the requirements set under Recommendation 18 and in the general Reporting Principles, Progress reports on the implementation of CEDAW should contain information on the situation of women with disabilities under each right, including their current de-facto and de jure situation, measures taken to enhance their status, progress made and difficulties and obstacles encountered.

It is also important to acknowledge that the development of a UN Convention for People with Disabilities does not mean that other existing human rights treaties (including CEDAW) will cease to apply to disabled people. The human rights guarantees in these existing treaties will continue to apply to people with disabilities. It will still be necessary to obtain maximum advantage from the existing human rights instruments. The adoption of a UN Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities. should be seen as a complement to, and not an enemy of, the existing instruments (WWDA 2005; Quinn & Degener 2002).


References

Australian Government (2003) ‘Women in Australia’ – Australia’s Combined Fourth and Fifth Reports on Implementing the United Nation’s Convention on the Elimination of All Forms of Discrimination Against Women; Department of Prime Minister & Cabinet; Canberra.

Byrnes, A. (2003) Panel I: Typology of international conventions and options for a convention on the rights of persons with disabilities, June 16; Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, New York, 16-27 June 2003.

Byrnes, A. (2003) Reflections on the proposed international convention on the human rights of persons with disabilities in the light of existing international human right standards: form, process and substance. Expert Group Meeting and Seminar on an International Convention to Protect and Promote the Rights and Dignity of Persons with Disabilities; Bangkok, Thailand; 2-4 June 2003

UN ESCAP Workshop on Women and Disability (2003): Promoting Full Participation of Women with Disabilities in the Process of Elaboration on an International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities. 18-22 August 2003, Bangkok, Thailand; 13 October 2003, Bangkok, Thailand

Women With Disabilities Australia (WWDA) (2002) ‘There Is No Justice: Just Us’ – The Status of Women with Disabilities in Australia; By Carolyn Frohmader for Women With Disabilities Australia (WWDA). Canberra.

Women With Disabilities Australia (WWDA) (2005) Submission to the Australian Senate Community Affairs Legislation Committee on the Employment and Workplace Relations Legislation Amendment (Welfare to Work and other Measures) Bill 2005 and the Family and Community Services Legislation Amendment (Welfare to Work) Bill 2005; WWDA; Hobart, Tasmania.

Women With Disabilities Australia (WWDA) (2005) Submission from Women With Disabilities Australia (WWDA) to the HREOC National Inquiry into Employment and Disability; WWDA; Hobart, Tasmania.