National Disability Strategies as
tools for implementing the
Convention on the Rights of
Persons with Disabilities
Graeme Innes, 9 December 2010 Centre for disability law and
policy University College Galway, Ireland: delivered via video link
Summary: Australia’s National Disability Strategy provides a
framework for implementation of the Convention on the Rights of
Persons and for means for enhancing reporting under the
Convention. Further development and implementation of the NDS
should be informed by the Committee’s reporting guidelines and by
the dialogue between the Australian Government and the
Committee in considering Australia’s reports. Some enhancements
to the reporting guidelines may also be helpful.
In November 2009 Australia’s Prime Minister announced the
development of a National Disability Strategy as a central
mechanism for implementation of the Convention on the Rights of
Persons with Disabilities in Australia.
As the Prime Minister said
People with disability in Australia are too often left without the
basic services and equipment they need; denied the chance
to work and study or take advantage of opportunities to live
their life to its full potential; discriminated against, shut out
and isolated;
And people with disability and their families want Australia to
change – they want an Australia which is inclusive, enabling
and which provides equality and the opportunity for each
person to fulfil their potential .
Surprisingly, the Disability Convention will in fact be the first of the
major international instruments which has actually had a
comprehensive national implementation strategy in Australia.
Surprising because it is more usual for disability to be left out in
human rights discussions than to lead the way.
As we know, the centrepiece human rights instruments - the
Universal Declaration of Human Rights and the twin human rights
Covenants of 1966 - fail to even mention disability among their
long recitals of prohibited grounds of discrimination and required
areas of protection.
It’s also been said before that the 1960s Covenants suffered from
the Cold War division of what were meant to be indivisible human
rights, into categories of civil and political rights on the one hand,
and economic social and cultural rights on the other.
One of the many good things about the Disability Convention is
that it breaks down this division which I think changes not just what
rights we think about, but how we think about them. The division
into two categories reflects and reinforces views along the
following lines:
civil and political rights are thought of as essentially negative
rights for citizens to be left alone by government
economic, social and cultural rights are thought of as essentially
aspirational in character, and considered as political claims
rather than as legally enforceable or justiciable rights
civil and political rights are thought of as being about laws
(striking them down or at most making them) while
economic, social and cultural rights are thought of as
involving money.
This sort of negative model of human rights has been criticised as
representing the world view of a white middle class man who
doesn't have a disability. As long as I can sit in my study and read,
without the police being able to break in to ask what I am reading,
and as long as the law can't allow them to break in at least without
a warrant, things are basically o.k.
The lived experience of disability is, of course, that things are not
basically o.k.
The Disability Convention represents the results of thinking based
on that lived experience, by some of the people at this meeting
today, and by many thousands more around the world.
The Convention on the Rights of Persons with Disabilities, as the
newest of the major human rights instruments, was also drafted
with the benefit of previous experience in seeking to promote
respect, protection and fulfilment of human rights, including
experience in the limitations of previous instruments as a basis for
national implementation efforts.
This experience extends over a substantial period: the Disability
Convention after all is
42 years more recent than the twin Covenants;
43 years younger than the Convention on the Elimination of All
Forms of Racial Discrimination;
29 years younger than the Convention on the Elimination of All
Forms of Discrimination Against Women; and
19 years younger even than the Convention on the Rights of the
Child.
One of my favourite quotes about human rights, and I don't
apologise for using it again for those here who have heard it
before, is from the great French jurist Rene Cassin, who said
during the drafting of the Universal Declaration:
... it would be deceiving the peoples of the world to let them think
that a legal provision was all that was required ... when in fact an
entire social structure had to be transformed.
Some of you have also heard me say before that the Convention
on the Rights of Persons with Disabilities reflects this point far
more clearly than previous human rights instruments, including
in the range of measures called for in the general obligations
clause of the Convention, Article 4
in the way substantive articles like article 9 on accessibility or
article 24 on education present in quite some detail a
practical agenda for implementing rights instead of simply
proclaiming rights in principle
in the provisions requiring measures for ongoing implementation
and monitoring.
The Disability Convention makes far clearer than previous
instruments that promoting respect, protection and fulfilment of
human rights should not be regarded as confined to ensuring
formal compliance of legal measures at the point of ratification.
Rather, human rights instruments should be seen as providing a
basis for ongoing policy measures, and require monitoring of
progress towards outcomes.
The reporting guidelines adopted by the Committee on the Rights
of Persons with Disabilities reflect this same point.
States should consider the reporting process, including the
process of preparation of their reports, not only as a means to
ensure compliance with their international obligations, but also as
an opportunity to take stock of the state of human rights protection
within their jurisdiction for the purpose of more efficient policy
planning and implementation of the Convention. The report
preparation process thus offers an occasion for each State Party
to:
(a)
Conduct a comprehensive review of the measures it has
taken to harmonize national law and policy with the provisions of
the relevant international human rights treaties to which it is a
party; (b)
Monitor progress made in promoting the enjoyment
of the rights set forth in the treaties in the context of the promotion
of human rights in general; (c)
Identify problems and
shortcomings in its approach to the implementation of the treaties;
(d)
Plan and develop appropriate policies to achieve these
goals.
Along with the Convention itself I think that these reporting
guidelines are among the most practical and useful United Nations
documents ever issued. I would be interested though to hear the
views of other participants in this meeting on areas where the
guidelines could be even better.
I have a particular view that the emphasis on the obligations in
article 4 deserves to be strengthened, because that Article
contains so much of what takes the Disability Convention beyond
previous instruments for achieving human rights in reality.
Australia’s Initial Report under article 35 of the Convention was
submitted on 3 December which is of course the International Day
for people with disability.
I would describe the Australian Initial Report as a good first try
rather than as the last word in reporting. In saying that I do not
mean any disrespect to my colleagues in Government who
prepared it.
Although the draft report fairly clearly does not contain all of the
information requested in the Committee’s reporting guidelines, I
think nonetheless that the report is entitled to state as it does that
“This report has been prepared in accordance with the
Committee’s Guidelines”.
It’s a bit like saying a student is tracking well against curriculum
objectives; has handed in a good first term paper; shows
reasonable awareness of areas where substantial improvement is
needed; has made good progress in working with others; and has
good prospects of performing well at the end of the year. You don’t
say they have failed just because it would be better if they had
already passed the course.
The main reason I take a fairly positive view of Australia’s Initial
Report is that I see it as taking up the invitation to approach
reporting as part of a forward looking policy process, rather than
only as a process of reporting completed actions. It notes that
The Australian and State and Territory and Local Governments
have developed a draft National Disability Strategy (NDS). The
Prime Minister released the draft NDS to the public on 29 July
2010 with the commitment to take it to the Council of Australian
Governments at the earliest opportunity. The NDS will help
Australia to fulfil its obligations under the Convention by
establishing a framework to promote, protect and monitor the
implementation of the Convention, as required under article 33(2).
… The NDS aims to address the barriers that are faced by
Australians with disabilities and promote social inclusion. The NDS
will ensure that the principles underpinning the Convention are
incorporated into policies and programs affecting persons with
disabilities, their families and carers. It is intended to be a living
document refreshed over its ten year life span against which
Australians can assess progress for persons with disabilities, and
will inform Australia’s future reporting under the Convention.
Thus a national disability strategy is seen as a means for
implementation of the Convention, and also as a means for
enhancing reporting under the Convention.
For these objectives to be met effectively and efficiently it appears
appropriate that the relationship between the NDS and the
Convention reporting process should be a two way one.
That is, the further development and implementation of the NDS
should be informed by the Committee’s reporting guidelines and by
the dialogue between the Australian Government and the
Committee in considering Australia’s reports.
Having regard to article 33 of the Convention this dialogue clearly
should also include organisations representing people with
disability and the independent national Human Rights
Commission. This approach would be consistent with the
consultative and participatory approach that Australian
governments took to Australia’s contributions to the development
of the Convention itself.
The Commission and disability representatives were involved in
the development of the Government’s position for the United
Nations Working Group negotiations – with disability organisations
receiving financial support for this purpose - and were also
included in the government delegation
Australia’s Prime Minister Gillard released the National Disability
Strategy as a policy announcement during the recent election
campaign..
The Strategy is oddly difficult to locate online if you do not already
know where it is: as of last week at least it still appeared only on
the Australian Labour Party election campaign website rather than
on the Australian Government’s site, despite the election being
well and truly over.
The document itself made very clear though that it was not simply
a document from one party at one level of government produced
for election campaign purposes. Its development has involved all
levels of government with input from the Commission and from
disability representative, advisory and advocacy organisations
Australia’s initial report under the Convention states:
The purposes of the NDS are to:
set out a high-level policy framework to give coherence and
guidance to the activities of Australian governments across
mainstream and disability-specific areas of public policy
drive improved performance of mainstream services for persons
with disabilities, and
provide visibility for the needs of persons with disabilities and
ensure they are included when developing policy or
implementing initiatives that impact upon them.
The submission which the Australian Human Rights Commission
put in to the Commonwealth's initial process for consideration of a
National Disability Strategy back in 2008 recognised that such a
Strategy, while able to contain some immediate measures, would
in large part necessarily set a framework for further processes of
policy and program development, implementation and monitoring.
So it would not be very fair for me to criticise Australia’s NDS for
taking the approach of providing a high level framework. While it
identifies a range of areas for future action, I think it is fair to say
that most of these are correctly described as broad areas for
action rather than as specific and measurable actions and targets.
But very importantly there is also a commitment to develop a more
detailed implementation plan.
People with disability and other key stakeholders are to be
involved in this including in setting priorities and in finalising draft
indicators for monitoring of progress.
The implementation plan including timelines is to be included in a
report back to the Council of Australian Governments at the 12
month point.
Community and disability services Ministers are indicated as
having lead responsibility.
The draft emphasises however that it is not confined to areas of
government concerned with specialist disability services, but aims
to improve the way all mainstream systems and services relate to
disability. Roles for Education and Health Ministers are specifically
mentioned in the Strategy with indications that other ministers
should act as champions on other issues.
In our 2008 submission the Commission went somewhat further
than this. We recommended that the National Disability Strategy
should include a commitment for each Ministerial Council to
develop disability strategies based on the Convention.
We also recommended that the National Disability Strategy should
include a commitment from each government for each of its
departments and agencies to develop a disability strategy based
on the Convention, in relation to
relevant aspects of each Department and agency's specific
responsibilities; and
elements common to all agencies, including employment
practices, accessible premises, accessible service delivery,
accessible information and communications, accessible
procurement and effective consultation with people with
disability.
I remain hopeful that this level of detail and this breadth of
commitments will emerge in the development of the Strategy
implementation plan over the first 12 months.
The Strategy still awaits endorsement by the Council of Australian
Governments. I am hopeful that this will occur in January. Ahead
of that, I have been writing to Ministers to suggest that 12 months
is not a very long time given the scale of the task. I said at an
education sector conference last week that this exam is one where
it would be a good idea to start work before the official starting
time.
On one part of the National Disability Strategy, though, the
examiners have already said “your time starts now”.
Everyone involved with disability knows that there are extra costs
for participating in many areas of life – whether it’s a need for
personal assistance, or needing to use taxis instead of cheaper
forms of transport, or needing specialised equipment and services.
Just having discrimination laws or other human rights laws doesn’t
make those costs go away. Often they fall on people with disability
and their families. Often they go unmet - so that people simply
miss out on opportunity and participation, and our society misses
out on everyone contributing to their full potential.
So I regard it as very positive that Australia’s Productivity
Commission has already been asked to examine a national social
insurance scheme for disability as part of the National Disability
Strategy.
The Human Rights Commission has argued that a National
Disability Insurance Scheme and institutions administering such a
scheme could have major roles in achieving implementation of the
Convention on the Rights of Persons with Disabilities.
We have argued that scheme design, including the purposes for
scheme funds and the roles of institutional arrangements, should
encompass the full range of human rights and obligations
recognised by the Convention (thus for example addressing
participation in and reasonable adjustments to mainstream
activities rather than only specific disability services and
supports)
include measures to remove disabling barriers on societal and
institutional as well as individual levels (noting the social
model of disability adopted by the Convention)
enhance capacity for effective participation in decision making by
people with disabilities, including through support for and
recognition of the roles of advocacy and representative
organisations.
disabling barriers to equal participation in mainstream services,
facilities and opportunities are a significant source of needs
for services and support directed specifically to people with
disability; and that
a scheme which reduces disablement and the social and
individual costs of disablement over time accordingly needs
to have sufficient scope to address disabling barriers in
society.
The Commission has sought to emphasise the need for
development of better (or in some areas, any) indicators of how we
are doing in ensuring enjoyment of human rights for people with
disabilities and achieving compliance with our obligations under
the Convention and goals and targets for the future.
Agreeing on indicators and benchmarks for success is not always
easy particularly in Federal-State discussions but I am hopeful that
the further development of the National Disability Strategy will
involve a strong focus on identifying how we will know if and how
far we have advanced the goals of achieving an Australia which is
inclusive, enabling and which provides equality and the opportunity
for each person to fulfil their potential .
It has been pointed out in Australia that collection of data and
statistics as is required by article 31 is fundamental to the
operation of social insurance schemes. So an NDIS could assist in
providing an evidence base for implementation actions and in
monitoring progress achieved.
The Commission has noted that consistent with the social model of
disability adopted throughout the Convention, data collection
needs to go beyond data about impairment and about functioning
of services and facilities specifically addressed to people with
disability to also include data about social and environmental
barriers and process in reducing these barriers and their impact.
Reporting performance against human rights indicators is an area
where Australia appears to be some way behind some other
countries such as the U.K. and New Zealand. For disability at
least, an NDIS has the potential to change this.
Development of data and indicators through an NDIS could assist
greatly in ensuring that reporting under article 35 is meaningful and
assists in achieving effective implementation over time.
The Commission itself has been given some continuing roles in
promoting implementation of the Convention, which last year was
added to the human rights instruments defining our jurisdiction.
The Commission has argued that institutions such as a National
Disability Commission as have been proposed for the
administration of an NDIS could complement and add value to
existing Australian Human Rights Commission functions and
activity through
having a significantly greater resource base for disability rights
activities
working in co-operation with Australian Human Rights
Commission policy, educational and other activities
potentially resourcing the use by individuals and organisations of
complaint and other processes under the Disability
Discrimination Act.
Implementing the Convention and promoting human rights for
people with disability and their families through a National
Disability Strategy is full of creative and exciting and challenging
positive agendas – on how we can and should work to better the
wellbeing of Australia 's people.