COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES CONSIDERS INITIAL REPORT OF AUSTRALIA
4 September 2013
The Committee on the Rights of Persons with Disabilities today completed its consideration of the initial report of Australia on its implementation of the provisions of the Convention on the Rights of Persons with Disabilities.
Presenting the report of Australia, Peter Woolcott, Permanent Representative of Australia to the United Nations Office at Geneva, said that Australia had worked over many years to remove barriers to people with disabilities’ enjoyment of their rights on an equal basis with others and much had been accomplished; there was still more work to be done, especially in meeting the challenges faced by indigenous people with disabilities, and ensuring that Australia’s systems and programmes respected persons’ autonomy and choice.
Edah Maina, Committee Expert and Rapporteur for the report of Australia, noted with concern that Australia practiced a medical model as seen in the provisions of laws and policies in health, rehabilitation, capacity assessment and education. Australia’s declaratory interpretation on a number of articles of the Convention had a significant impact on its implementation of the Convention. Ms. Maina also noted among the different definitions of disability in Australia, some were degrading; the large proportion of indigenous people with disabilities in prison and the situation of persons with psychosocial disabilities were also of concern.
As a developed country, Committee Experts highlighted that the bar had been set high for Australia and stressed the need of identifying concrete benchmarks and data that could be used to measure improvements. During the discussion, among other issues, Experts expressed concerns about the interpretative declarations made on some articles of the Convention, the situation of women and indigenous persons with disabilities with regards to multiple discrimination, the practice of forced sterilisation, the different definitions of disability across jurisdictions and services, and the persistence of a medical approach to disabilities.
Maria Soledad Cisternas Reyes, Chairperson of the Committee, welcomed the recognition by the Australian delegation that the bar had been set high for Australia as a developed State and the Committee had been meticulous in this regard. Ms. Cisternas Reyes also recognised the contributions from Committee members and the participation of civil society, both in the room and those who were following the work of the Committee online.
The Australian delegation included representatives from the Permanent Mission of Australia to the United Nations Office at Geneva; the Attorney-General’s Department; the Department of Families, Housing, Community Services and Indigenous Affairs; and the Australian Human Rights Commission.
The next public meeting of the Committee will take place this afternoon, at 3 p.m., when the Committee will consider the initial report of El Salvador (CRPD/C/SLV/1).
Report of Australia
The initial report of Australia on its implementation of the provisions of the Convention on the Rights of Persons with Disabilities can be found here: (CRPD/C/AUS/1).
Presentation of the Report
PETER WOOLCOTT, Permanent Representative of Australia to the United Nations Office at Geneva, introducing the initial report, said that Australia had worked over many years to remove barriers to people with disabilities’ enjoyment of their rights on an equal basis with others and much had been accomplished; there was still more work to be done, especially in meeting the challenges faced by indigenous people with disabilities, and ensuring that Australia’s systems and programmes respected persons’ autonomy and choice. A federal election had been announced and the Government had assumed a ‘caretaker role’ recognising that in every general election there was a possibility of a change of government. For this reason, the delegation would be unable to respond to questions regarding any future Government actions or policy developments but would provide factual information on key legislative, policy and other measures adopted during the review period.
The Australian Government Attorney-General’s Department and the Department of Families, Housing, Community Services and Indigenous Affairs were designed as joint focal points for matters related to the implementation of the Convention. Australia counted with a National Disability Strategy, agreed by all nine governments, which guided public policy across all levels of government and aimed to improve design and delivery of mainstream, as well as disability specific, services and programmes and to ensure that the principles underpinning the Convention were incorporated into them. Australia’s 1992 Disability Discrimination Act made it unlawful to discriminate against people with disability in a range of areas of public life, including employment, education, and the provision of goods and services, and the act had been actively used in Australia to strive for greater equality.
DisabilityCare Australia, a national insurance scheme which had been launched on 1 July, would receive 19.3 billion over seven years from 2012-13 from the Australian Government and would take an individualised approach to provide support to people with disabilities to enable them to meet their particular needs and goals. This reform would create opportunities for thousands of Australians with disabilities to participate in their communities and in the economy in a way that many took for granted. The scheme would be fully rolled out by July 2016 and by then would provide support to about 460,000 people who had a significant and permanent disability resulting in a substantially reduced capacity to participate in the activities of daily life. Australia was also committed to ensuring people with disabilities received opportunities to reach their potential by participating in the community and the workforce. In Australia it was unlawful to discriminate against someone on the basis of their disability in relation to employment.
The disability employment services programme encouraged employment by helping job-seekers and building disability awareness and helping employers meet the cost of making adjustments. Recognising the importance of engaging with people, the Government provided funding to 13 national disability organizations to contribute to government policies on issues affecting people with disabilities, their families and careers. The National People with Disabilities and Care Council provided advice on the implementation of the national elements of the national strategy and other key reforms. The Government was developing a new target specifically aimed at increasing access to specialist services and support for indigenous people with disabilities to ensure that persons with disabilities received the support their required. Australia’s aid programme had provided significant support to improve the lives of people with disabilities in developing countries and was recognised as an international leader in disability inclusive development and its aid programme was underpinned by the Convention.
GRAEME INNES, Disability Discrimination Commissioner, Australia Human Rights Commission, said that the comments of the Commission would focus on areas where there could be improvement. The Commission collaborated and exchanged information with the Government, and administrated the Disability Discrimination Act. The role of the Commissioner included education and awareness raising. Mr. Innes was participating with the Australian delegation but with an independent role. The submission of Australia focused on recent work and areas where there could be improvement. The Commission looked forward to continue to work with the Committee in these occasions and subsequently, and urged the Committee to investigate how technology could facilitate the cooperation between the Committee and national human rights institutions. There was less evidence of progress in areas such as access to justice, in particular among aborigines and minorities, violence against women, and employment for persons with disabilities. Information had been distributed to Committee Experts and Mr. Innes remained at the disposal of the Committee for further clarification.
Questions and Comments by the Committee’s Rapporteur and Experts
EDAH MAINA, Committee Expert and Rapporteur for the Report of Australia, noted with concern that Australia practiced a medical model as seen in the provisions of laws and policies in health, rehabilitation, capacity assessment and education. These laws supported practices such as the use of restrictive practices in special and mainstream schools, and children being tied to chairs, locked in isolation rooms and being physically restrained; there was force psychosurgery and electro-convulsive therapy, among other restrictive practices. Australia’s declaratory interpretation of articles 12, 13 and 18, and the intersections with other articles, had a significant impact in the implementation of the Convention, for example articles 1 and 2. Australian organizations of persons with disabilities were not consulted when these declaratory interpretations were made. Ms. Maina also noted that different definitions of disability in Australia were degrading.
Recognising different initiatives put in place by the Government, Ms. Maina also noted the deep concern expressed by organizations of persons with disabilities about the failure of these programmes to conform to the provisions of the Convention. For example, initiatives were conducted within the existing guardianship framework and the mode of communication used by persons with disabilities was not effectively promoted. It was not clear why recommendations to Australia from other United Nations human rights treaty bodies had been overlooked. The large proportion of indigenous people with disabilities in prison and the situation of persons with psychosocial disabilities imprisoned without being convicts were also of concern. Current work on restrictive practices looked into restrictions rather than their elimination. Ms. Maina, being a person with psychosocial disability, highlighted the situation of persons with such disabilities in Australia imprisoned or kept in institutions against their will.
Other Experts asked about the involvement of organizations of persons with disabilities in line with the Convention. Had Australia considered International Classification of Functioning, Disability and Health (ICF) standards in the context of the establishment of its different initiatives?
What about the efficiency and overall rate of complaints decided in favour of plaintiffs under the Discrimination Act and regarding the implementation of the plan on accessibility? Concerning the Discrimination Act, how many indigenous persons had actually been able to use this act and to lodge and complain, for example, in the last past year? Did indigenous people enjoy equal status as citizens? Concerning the different definitions of disability in Australia, was this posing additional challenges, including in the gathering of data? What definition had been used so far? Some Experts expressed concerns about Australia’s interpretative declarations on various articles of the Convention.
Given the resources available to Australia, higher standards had to be applied. Why hadn’t Australia addressed the legal gap regarding intersectional discrimination? Concerning the situation of indigenous persons with disabilities and the lack of legal recourse to address the intersectional discrimination they experienced, how did the national human rights commission provide support to individuals suffering from multiple discrimination, in particular those living in isolated or remote communities. Experts also inquired whether sufficient information about the situation and views from children and children with disabilities would be available. Why hadn’t Australia been able to outlaw physical punishment in its territory, to which children with disabilities were further vulnerable.
Experts noted the significant progress made and welcomed the contributions of organizations of persons with disabilities to the evaluation of the report. Serious concerns were raised about the situation of mass discrimination suffered by women and girls in Australia; bearing in mind the recommendations made by the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women, what had changed in the aftermath of these recommendations? Why were there parts of society which were not covered by protection from discrimination on the ground of disability?
It seemed natural that once that the Convention was ratified, protection to persons with disabilities would be granted in all areas and not only, for example, with respect to employment. Despite the existence of legislation against sterilisation, how could it be explained that sterilisation of persons with disabilities was not strictly prohibited? Concerning the primacy of the medical model in Australia, to what extent had the social and human rights model began to be used? How had the perspective of children been mainstreamed, in particular, in the context of indigenous communities.
Response by the Delegation
Responding to questions regarding the settlement of complaints by the Commission, the delegation noted that 48 per cent of cases were resolved through conciliation and the majority had successful outcomes. Concerning complaints about transport standards, there was a review currently underway so data was unavailable. The Commission also provided support to indigenous persons with disabilities and sent conciliation officers to remote areas. Interpretative declarations set out Australia’s understanding of the Convention and any decision concerning their removal would be an issue for any incoming Government. These were different from reservations and Australia was a party to all the articles of the Convention. The delegation noted that as a federal system there were laws at the national level but as a common law system, there was no single piece of legislation setting definition, but there were rather different definitions according to the purpose of the law and what the laws were trying to achieve. Australia was moving away from a medical model and a number of recent programmes were helping move towards a social model. The World Health Organization classification system had been taken into account and Australia was moving towards a social model but looked into its implementation through its policies, practices and laws.
For example, for the rolling out of a programme on mental illness and not wanting to let people into the programme just based on a medical diagnosis, people were allowed into the programme if they felt that they were severely impaired; they were subject to an evaluation designed in conjunction with persons with this experience. Australia was adopting a need based on disability support rather than one based on medical diagnosis. Assessment and assistance tool kits had been developed to determine the needs and provide opportunity to fast track or pass areas not relevant to some individuals, they identified vulnerabilities and support needed for individual care, including a particular tool kit for children.
Concerning restrictive practices and the concern about the violation of rights and vulnerability to abuse, the delegation noted that the Government recognised the importance of reducing the use of these practices. This was a longstanding issue and work had been done to ensure that restrictive practices were human and there was ongoing work on a framework that could benefit from inputs from the Committee. Regarding the human rights framework in Australia, the delegation indicated that this had been the Government’s response to a wide human rights consultation and informed by core human rights treaties. The framework had not included an human rights act of charter of rights, about which many Australians were not sure, and the Government had decided that the enhancement of human rights should be done in such a way that united rather than divided the community.
Responding to the questions about corporal punishment and the treatment of children, the delegation said that the Australian Government did not endorse corporal punishment and most states and territories had banned its use in schools. Complaints about instances of ill-treatment of children could be brought under Australian laws. Concerning consultations with civil society organizations, the delegation said that the design and implementation of DisabilityCare Australia had benefited from consultations and counted with an independent advisory council to present independent advice. The Australian Government provided funding to 13 organizations of persons with disabilities, amounting annually to almost 2.5 million Australian dollars.
In response to concerns about definitions of disabilities, the delegation reiterated that these varied depending on the purpose. Data collection was carried out by the bureau of statistics using a particular definition for its survey, conceptually aligned with the World Health Organization’s definition of disability. Additional data was collected systematically on students with disabilities across Australia with support from the different States, on the basis of the Disability Discrimination Act. A clinical diagnosis was not necessary but the focus was on the level of adjustment provided. Concerning intersectional discrimination, the delegation highlighted the State’s implementation of obligations under human rights treaty bodies. In the case of the Convention on the Rights of Persons with Disabilities, most of the legislative framework was considered to be in place for compliance with obligations.
Minimal accessibility standards for public transportation had been set out and a nation-wide consultation had taken place to evaluate the standards and make recommendations for future work and targets. Progress had been made in some areas but further research and analysis was needed. Australia had also taken action to ensure that persons with disabilities could access public buildings on an equal basis. Technical design specification had contributed to improving access to a number of buildings and facilities. Grants had been offered to match local government investments to make a range of public buildings and facilities more accessible.
Questions from Committee Experts
EDAH MAINA, Committee Expert and Rapporteur for the Report of Australia, said that the response from the delegation had suggested that the interpretative declarations on certain articles did not prevent Australia from implementing them. Ms. Maina then expressed concerns about the report of Australia with regards to compliance on some of these issues. Was Australia fully obliged to implement article 17 and what implication did this have on the intersection between this and other articles? If Australia was under the obligation to implement article 18, what would be done to address practices which were not in alignment with it and other articles of the Convention.
In relation to the coerced sterilisation of women and girls with disabilities, which according to the report was still a practice in Australia, Experts expressed concern that the report reflected recommendations for regulation rather than for the elimination of this practice. It was of concern that the practice of forced sterilisation continued to be implemented. On this basis, Australia should reconsider repelling the interpretative declaration. Experts also expressed concern at reports from civil society that Australian courts had withdrawn parental responsibilities of women with disabilities from their children in cases of violence and divorce suits. Numerous women with disabilities were currently in prison, what social programmes were these women able to benefit from? Noting reports of rapes of women with disabilities in institutions, where police investigations had not duly been carried out, Experts asked the delegation about measures to protect women with disabilities in institutions.
Concerning the situation of aborigines and islanders who were not regarded as having legal capacities, this meant they were exposed to other human rights abuses, including the risk of violence. Was the Government considering an investigation into the situation of these persons? It was a matter of concern that almost half of the people detained without trial were indigenous people, many of them with disabilities. What was Australia doing to ensure that its legislation in this regard complied with the Convention? Experts mentioned that, among the references to accessibility, nothing had been said about information and communication. Did Australia have comprehensive plans for disaster risk reduction that was accessible for the full participation of persons with disabilities as full stakeholders?
Civil society had noted an increasing number of instances of institutionalisation of persons with disability. What measures was Australia taking to secure independence in accordance to the Convention? Regarding development goals, what measures were being taken to include the question of disabilities in the report on the Millennium Development Goals? Were prisons adequately fit to meet the needs of prisoners with disabilities, and were they included in different activities?
Concerning reports of violence and abuse against persons with disabilities in institutions, Experts inquired about the extent of the problem and how was the Government intending to deal with it? Questions were also raised about the situation of immigrants and asylum seekers with disabilities, in the context of Australia’s international commitments. Noting that there was an important chance for persons with disability to be detained, particularly in some areas of the country, Experts asked what was being done to ensure access to justice for people with disabilities from rural or indigenous communities?
Response by the Delegation
Regarding the interpretative declarations, the delegation said Australia had taken note of the concerns of the Committee and reiterated that these were not reservations; given the current ‘caretaker mode’ the delegation could not commit to revising them but it was the job of the Committee to judge Australia on its implementation of the Convention in its policies, laws and practices. Australia supported the right of persons with disabilities to exercise their legal capacity, including in the cases in which assistance was required.
Criminal law was regulated at state and territorial levels and decisions were made in situations when persons were unable to make reasonable judgements in relation to matters related to their circumstances. Adults’ legal capacity was assumed unless the contrary was established and different jurisdictions counted with safeguards to prevent abuse, exploitation or neglect. Adult guardianships had limited periods and were subject to review by a court. Legislation required guardians to assist represented persons to make most of their own decisions and there were limitations concerning the decisions that guardians could make.
Australia’s DisabilityCare assumed that persons had the capacity to make decisions that affected their lives but it was recognised that some may not be able to manage this right and may need additional support. Although the appointment of nominees may need to place limitations on persons with disabilities, there were safeguards to ensure that their rights were respected. Regarding the training for people in charge of making decisions about capacity, the delegation indicated that the Government did not stipulate training for the judiciary but professional training was provided by educational and professional institutions.
Australia was committed to respecting the right to physical integrity and reproductive rights. Sterilisation was considered to be such an invasive procedure that, when the person concerned could not give consent, a tribunal’s decision was necessary, rather than a caretaker, family member or guardian. Education and training about sexuality and relationships for persons with disabilities should be prioritised. Proposals had been outlined by the Senate Committee regarding sterilisation and measures to uphold the rights of persons with disabilities. An outright ban was seen as removing the focus on the needs of individuals and placing it on a generic notion of what was best for the person.
Childhood disability was a key risk factor for child abuse and neglect. While the responsibility for investigating and responding to abuse and neglect rested with state and territories’ governments, the Australian Government recognised the need for concerted action and a national framework. Australia had recently appointed a national children commissioner and states and territories had also established statutory offices to advocate for children and to monitor the child protection activities of governmental and non-government agencies.
Regarding support for people with disability applying for migration and refugee visas, the delegation informed that an accessibility plan, training for staff, and a disability action plan were being developed. A business process was being designed to meet the needs of persons with disabilities, for example, in the context of citizenship, including exam and language requirement weavers.
Australia’s access and equity policy acknowledged that some people experienced discrimination on the basis of more than one vulnerability. Interpretation services for non-English speakers and sign language were available for agencies and business to communicate with beneficiaries. The Government also funded several organizations and there were a number of programmes for persons with disabilities which took into account cultural and linguistic diversity or had a high rate of participation.
In relation to the situation of women with disabilities, Australia recognised that gender could significantly impact the experience of disability and women and girls faced particular challenges. Gender equality related programmes considered the needs and experiences of women with disabilities. A general survey conducted in 2010 showed that people with disabilities or long-term health conditions were 1.2 times more likely to have been victims of violence in the 12 months prior.
Effective access to justice for persons with disabilities was crucial to ensure that their rights were respected. Measures were in place to provide alternatives for sentences for people with disabilities who were considered to be unfit to be tried, as well as alternatives to prison for indigenous persons with disabilities. Persons with disabilities with heightened vulnerability who came in contact with the criminal system also received additional support. Australia was aware of the need to do additional work concerning the situation of indigenous communities.
Efforts were being made to improve the provision of accessible housing including both mainstream and supported accommodation and, since 2003, there had been a significant decrease in the number of people with disabilities in institutional accommodation and over the period there had been a 45 per cent growth in accommodation in other community settings. DisabilityCare allowed persons with disability to be able to determine their best interests and to have choice and control over the planning and delivery of assistance and support, including the ability to take reasonable risk and to select the support that best met their needs and preferences.
The Government had strategies to ensure that Government organizations complied with content accessibility guidelines 2.0 level A by December 2012 and AA by the end of 2014. Funding was provided for Braille and captioning and the NICAN website had been created to provide accessible information online on recreation, tourism, sport and the arts for people with disabilities. There were additional measures to ensure access to information on emergency preparedness for persons with disabilities.
Questions from Experts
Experts reiterated questions about the reported rape of five women with disabilities lodged in institutions, which the police had failed to investigate. Why hadn’t there been an appropriate investigation and due process? Questions were asked about the situation of persons imprisoned in the Torres Strait Islands without being convicted. Concerning the participation of women in political and public life, Experts asked whether there was an advisory council or service for women and how many women with disabilities were part of it. How was Australia ensuring the representation of women with disabilities in positions of responsibility?
Experts wondered whether the budget mentioned for services for persons with disabilities’ programmes was sufficient and whether they were underfunded in comparison to other programmes. Were hotels and touristic service providers required to ensure accessibility for persons with disabilities, such as accessible rooms or sign language interpretation? Concerning the right to communication, were there any plans to recognise sign language as an official language?
Experts suggested that Australia should go beyond mentioning standards or guidelines and should mention standards of achievement that could be used as a benchmark to evaluate progress. It was noted that the delegation acknowledged that employment was an area facing significant challenges. Australia still struggled with sheltered workshops, which had been renamed disability enterprises: were there plans to move towards a reduction of sheltered employment and towards open employment opportunities?
What efforts had been made to preserve the cultural identity of persons with disabilities? It had been reported that one local deaf people organization from South Australia was unable to maintain a community building to which they were attached. How did organizations of persons with disabilities participate in monitoring mechanisms? There were concerns that the movement of indigenous Australians with disabilities were disproportionately underfunded, were they being included? How did the Government differenciate between service providers and representative organizations? Experts reiterated concerns about instances of multiple discrimination facing, in particular, women and indigenous persons with disabilities. Was the Government collecting data about the number of indigenous persons with disabilities across the country? How many people of aboriginal origin with disabilities were indefinitely detained across all jurisdictions?
Were there any organizations of persons with psychosocial disabilities and was the Government providing them with any support? What was the legal framework for the use of restraint, including chemical and mechanical measures, and did the practice comply with the Convention? Was the Government aiming to transition from a medical to a human rights approach to habilitation and rehabilitation? Also regarding the issue of monitoring, Experts inquired, as a federal state, how did Australia intend to monitor various programmes and strategies at multiple levels in order to ensure the implementation of the Convention?
Experts commended Australia for their commitment to support persons with disabilities in their work on development. In what parts of the world was Australia working to implement disability inclusive development and what specific data was available about the quantitative differences made by these programmes? Why hadn’t the Government established a monitoring system in accordance to the Paris Principles and why did representative organizations have the feeling that they had not been included in the monitoring and implementation process?
Response by the Delegation
PETER WOOLCOTT, Permanent Representative of Australia to the United Nations Office at Geneva, said that the delegation would provide written answers to questions which couldn’t be answered during the meeting due to time constraints.
The delegation said that the Government had made great efforts to improve the situation of persons with disabilities regarding employment. Persons with disability were recorded on human rights database; they were underrepresented in the public services, as had been noted by the Australian Government; for a variety of personal and privacy reasons people may decide not to disclose disability-related information. There was a strategy to promote the employment of people with disabilities in public services and a diversity council had been recently created to bring visibility to diversity issues and promote best practices, including regarding inclusion of persons with disabilities.
Numerous questions had concerned issues about the consultation process with civil society; the delegation stressed that persons with disabilities were not forgotten and were part of key decision-making through consultations. Extensive consultations had taken place in the context of the Senate Committee’s report on sterilisation and a list of participants was included in the report.
With regards to voting and political life, the delegation noted that Australia’s system of compulsory voting maximised participation and that a number of measures were taken to facilitate voting and ensuring accessibility. The Commonwealth electoral act excluded persons incapable of understanding the nature and significance of voting, but there were numerous avenues to challenging such a decision. Persons serving a full time prison sentence of more than three years could remain on the electoral list and could vote after their release. Australia’s approach to disability was based on functional impairment and not on medical diagnosis, which meant each person was dealt with in their own merits and the way they experienced disability.
GRAEME INNES, Disability Discrimination Commissioner, Australia Human Rights Commission, stressed that the four million Australians with disabilities faced significant challenges, for example, 45 per cent lived under poverty and their average revenue was almost half of that of the population as a whole. Mr. Innes also highlighted that the participation of persons with disabilities in the labour market was 30 per cent lower than that of the rest of the population. The national insurance scheme would have important repercussions but it would not be able to address all challenges. The Government would not be able to incite the private sector to employ persons with disabilities when the public sector itself had seen a reduction from 6.5 to 2.9 per cent in the number of employees with disabilities. Finally, Mr. Innes thanked the Government for allowing the Commission to participate and hoped that this practice would contribute to ensuring compliance.
PETER WOOLCOTT, Permanent Representative of Australia to the United Nations Office at Geneva, in concluding remarks, said that as a rich country the Committee was right to hold Australia to a high standard. Australia was proud of its record under the National Disability Strategy and DisabilityCare was among initiatives that clearly demonstrated the commitment to promoting and protecting the rights of persons with disabilities. Australia recognised that women, children and indigenous Australians with disabilities may face multiple intersecting disadvantages and steps to ensure the specific needs of these vulnerable groups were being considered. The Convention underpinned much of Australia’s work and human rights legislation ensuring compatibility with the Convention was actively considered when new laws were introduced in Parliament.
MARIA SOLEDAD CISTERNAS REYES, Chairperson of the Committee, welcomed the recognition by the Australian delegation that the bar should be set high for Australia as a developed State and noted that the Committee had been meticulous in this regard. Ms. Cisternas Reyes also recognised the contributions from Committee Members and the participation of civil society, both in the room and those who were following the work of the Committee online.
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