Australia’s UPR 2015
NGO Coalition Factsheet
Issue
People with disability subjected to restrictive practices.
Background
People with disability in Australia, particularly those with cognitive impairment or
psychosocial disability, are routinely subjected to unregulated and under-regulated behaviour
modification or restrictive practices such as chemical, mechanical and physical restraint and
seclusion. Whilst Australia has ratified the Convention against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (CAT), State and Territory legislative
protections do not extend to acts amounting to inhuman and degrading treatment.
Restrictive practices and children
There is significant concern about the use of restrictive practices in both ‘special’ and
mainstream schools, with reports across Australia that children are being tied to chairs, locked
in isolation rooms, being physically restrained and penned in outside areas under the guise of
‘behaviour management’ policies and practice.1 2
The National Framework on restrictive practices
In 2014 Commonwealth, State and Territory governments endorsed the National Framework
for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service
Sector3 focusing on the reduction of the use of restrictive practices in disability services that
involves restraint (including physical, mechanical or chemical) or seclusion. Although the
national approach and references to compliance with the Convention on the Rights of Persons
with Disabilities (CRPD) are welcome, there are a number of limitations.
For example, the Framework focusses more on when and how to use restrictive practices rather
than seeking to prevent their use, or looking at the environmental factors that may be causing
an individual to behave in a way which introduces restraint as an option. The Framework is
1
Information received from Children with Disability Australia, People with Disability Australia, the Disability
Discrimination Legal Service Victoria. See also ABC Television, ‘Hidden Shame’, 7.30, 17 May 2011 (Mary
Gearin) <http://www.abc.net.au/7.30/content/2011/s3219518.htm>; and 2015 report re a Canberra schoolboy
with autism who was locked in a cage for behaviour management.
<http://www.sbs.com.au/news/article/2015/04/03/mistreatment-disabled-kids-shocking>
2
Following a complaint of a student with disability being locked in a cage the Australian Capital Territory
Government announced an investigation into the incident
<http://www.cmd.act.gov.au/open_government/inform/act_government_media_releases/etd/2015/educationand-training-directorate-statement>
3
https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policyresearch/national-framework-for-reducing-and-eliminating-the-use-of-restrictive-practices-in-the-disabilityservice-sector
1
not premised on changing services, systems and environments as the starting point for changing
individual behaviour, but remains focused on changing the person themselves.4
Secondly, the Framework is only intended to apply to disability services. Formal disability
services should play a significantly smaller role in the lives of people with disability over the
coming years as self-directed disability support is progressively implemented through the
National Disability Insurance Scheme (NDIS). Under this scheme the majority of participants
will purchase disability supports from the open market and may not choose to use government
regulated services. The question of how the use of restrictive practices by non-regulated
providers of support will be prevented, monitored and investigated is currently being developed
through a NDIS Quality and Safeguards Framework.5
Not all people with disability will receive support through the NDIS, and people with disability
in Australia experience restrictive practices in numerous environments including schools,
mental health facilities, within prisons and hospitals.6 Any framework on restrictive practices
needs to recognise this, and be part of a wider overarching national strategy addressing violence
and abuse of people with disability in general.
In 2005, all Australian Governments agreed to act to reduce and where possible to eliminate
the use of seclusion and restraint in mental health services. In 2015, the National Mental Health
Commission released a position paper, based on a national research project that outlines actions
for Australian Governments to reduce and eliminate seclusion and restraint in mental health
services.7
Restrictive practices can constitute torture or cruel, inhuman or degrading treatment or
punishment yet there is no reference in the Framework to Australia’s obligations under the
Convention against Torture (CAT) or Articles 12, 15, 16 and 17 of the CRPD. The Framework
would have greater utility if it was developed in parallel to work towards ratification of the
Optional Protocol on the Convention against Torture (OPCAT), and establishment of an
independent national preventative mechanism to monitor places of detention; including places
of detention where people with disability live such as prisons, disability justice centres and
psychiatric hospitals.
Proposed Recommendation
Australia should continue work to date to eliminate restrictive practices, in all forms
and settings, which restrict, inhibit and or limit the free movement and enjoyment of
life of people with disability.
People with Disability Australia, ‘Consideration of the 4 th and 5th Reports of Australia by the committee to the
Convention Against Torture’, (Submission, People with Disability Australia, October 2014)
<www.pwd.org.au/documents/pubs/SB14-UNCAT.doc>.
5
https://engage.dss.gov.au/ndis-qsf/
6
Civil Society CRPD Parallel Report Group, Disability Rights Now: Civil Society Report to the United Nations
Committee on the Rights of Persons with Disabilities (2012), People with Disability Australia
<http://www.pwd.org.au/documents/project/undrc/CRPD-CivilSocietyReport2012.doc>
7
http://www.mentalhealthcommission.gov.au/our-work/national-seclusion-and-restraint-project.aspx
4
2