Key Pieces of Legislation
- Convention on the Rights of Persons with Disabilities (CRPD)
The principal role of the CRPD is to demonstrate how traditional rights are to be applied in respect of people with disability.
On 13 December 2006 at the United Nations Headquarters in New York, the Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol was adopted and opened for signature on 30 March 2007. There were 82 signatories to the convention on that day, including Australia.
Australia ratified the convention and its Optional Protocol on 17 July 2008 and joined other countries around the world in a global effort to promote the equal and active participation of all people with disability in society and community life.
This is a fundamental achievement given the history of the rights of people with disability.
The CRPD incorporates both ‘civil and political rights’ and ‘economic, social and cultural rights’. Civil and political rights are sometimes called ‘negative rights’ because they operate mainly to constrain or control interference with the liberty of the individual. On the other hand, economic, social and cultural rights are sometimes called ‘positive obligations’ because they ask for State Parties to take active steps to avoid the violation of a human right.
Civil and political rights and economic, social and cultural rights are, traditionally, subject to different standards of compliance. Civil and political rights are ‘immediately realisable’, which means that State Parties have an immediate obligation to promote, protect and fulfil these rights. Economic, social and cultural rights are subject to the standard of ‘progressive realisation’. States Parties are not required to immediately fully comply with the requirements of the right, provide they are working towards the realisation of the right as quickly and effectively as possible, using the maximum resources at their disposal. State Parties do, however, have an obligation to satisfy ‘minimum essential levels’ of the right, and to avoid deliberately regressive measures.
The CRPD is made up of a Preamble and 50 Articles. At least 30 of the Articles which have substantive human rights content and cover the following areas:
- Equality and non-discrimination
- Women with disabilities
- Children with disabilities
- Awareness raising
- Right to life
- Situations of risk and humanitarian emergencies
- Equal recognition before the law
- Access to justice
- Liberty and security of the person
- Freedom from torture or cruel, inhuman or degrading treatment or punishment
- Freedom from exploitation, violence and abuse
- Protecting the integrity of the person
- Liberty of movement and nationality
- Living independently and being included in the community
- Personal mobility
- Freedom of expression and opinion, and access to information
- Respect for privacy
- Respect for home and the family
- Habilitation and rehabilitation
- Work and employment
- Adequate standard of living and social protection
- Participation in political and public life
- Participation in cultural life, recreation, leisure and sport
The Optional Protocol
This is a separate document to the CRPD that incorporates an individual complaint procedure, which allows individuals and groups of individuals to raise complaints with the treaty body when they have exhausted domestic remedies. It also establishes an inquiry procedure in relation to gross or systemic violations of CRPD rights.
Article 4 of the CRPD requires parties to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the Convention. However, in spite of its obligation to do so, Australia has not comprehensively enacted into domestic ‘hard law’ previous international human rights treaties it has ratified. Australia does not have a national bill of rights. There can therefore be no real expectation that the act of ratification of the CRPD, of itself, will stimulate the Australian Government to enact further domestic measures for the promotion and protection of the human rights or people with disability.
The Australian Government has approached the question of ratification from the point of view that Australian laws and institutional arrangements already comply with the terms of CRPD. This does not necessarily mean that the Australia Government believes that Australians with disability enjoy to the maximum possible extent all of the human rights set down by the CRPD, particularly with respect to economic, social and cultural rights. However, it does take the view that Australia already demonstrates the required minimum level of compliance with CRPD obligations.
In this respect, particular reliance has been places on measures such as the Disability Discrimination Act (DDA) and the Disability Services Act. The implementation of the CRPD in Australia is therefore likely to require concerted ongoing efforts by disability activists and policy makers.
The Federal Disability Discrimination Act 1992 (DDA) provides protection for everyone in Australia against discrimination based on disability. It also aims to promote equal opportunity and access for people with disability.
Disability discrimination happens when people with a disability are treated less fairly than people without disability. Disability discrimination also occurs when people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with disability.
The DDA makes it against the law to discriminate against someone if they have a disability in the following areas of life:
- Employment. For example, when someone is trying to get a job, equal pay or promotion.
- Education. For example, when enrolling in a school, TAFE, university or other colleges.
- Access to premises used by the public. For example, using libraries, places of worship, government offices, hospitals, restaurants, shops, or other premises used by the public.
- Provision of goods, services and facilities. For example, when a person wants goods or services from shops, pubs and places of entertainment, cafes, video shops, banks, lawyers, government departments, doctors, hospitals and so on.
- Accommodation. For example, when renting or trying to rent a room in a boarding house, a flat, unit or house.
- Buying land. For example, buying a house, a place for a group of people, or drop-in centre.
- Activities of clubs and associations. For example, wanting to enter or join a registered club, (such as a sports club, RSL or fitness centre), or when a person is already a member.
- Sport. For example, when wanting to play, or playing a sport.
- Administration of Commonwealth Government laws and programs. For example, when seeking information on government entitlements, trying to access government programs, wanting to use voting facilities.
There are six National Standards that apply to disability service providers.
- Rights: The service promotes individual rights to freedom of expression, self-determination and decision-making and actively prevents abuse, harm, neglect and violence.
- Participation and Inclusion: The service works with individuals and families, friends and carers to promote opportunities for meaningful participation and active inclusion in society.
- Individual Outcomes: Services and supports are assessed, planned, delivered and reviewed to build on individual strengths and enable individuals to reach their goals.
- Feedback and Complaints: Regular feedback is sought and used to inform individual and organisation-wide service reviews and improvement.
- Service Access: The service manages access, commencement and leaving a service in a transparent, fair, equal and responsive way.
- Service Management: The service has effective and accountable service management and leadership to maximise outcomes for individuals.