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Burdekin: The Human Rights Of Australians With Disabilities

Disability Disability Rights

The Human Rights Of Australians With Disabilities - A Challenge For
Government

Brian Burdekin
Federal Human Rights Commissioner 1986-1994

1989 KENNETH JENKINS ORATION
ACROD Convention
Canberra, 9 November 1989

Brian Burdekin

I would like to thank ACROD for inviting me to deliver the Kenneth Jenkins
Oration; both because I regard it as a privilege and because it gives
me the opportunity to address a gathering of the key people in the disability
field at an important time in the work of the Human Rights and Equal Opportunity
Commission.

On a personal note, I would like to say I am delighted to have Edith
Hall with us. Twenty years ago, Edith gave me several lessons in public
speaking - so you can blame her for any defects in delivery!

My central theme in this address is that the human rights of Australians
with disabilities are the same as the human rights. of all Australians.
However, because of the special circumstances of those with disabilities,
special measures are required by government to ensure that those rights
can be exercised. Despite some efforts, largely in response to the pressures
from disability organisations and their members, governments have not
adequately provided these special measures or are not adequately implementing
them.

The Human Rights and Equal Opportunity Commission, which is charged with
advising the Federal Government on the protection of human rights, will
be making the rights of people with disabilities a major priority in the
next 12-18 months.

During the course of this morning's address, I will be outlining some
of the work of the Commission, some of the limitations on this work, some
avenues for improvement, and announcing several new initiatives we are
undertaking. But I would like to begin by addressing the concept of the
Australian expression of, and the work of the Commission in promoting
and protecting, human rights.

Human rights

What, exactly, do we mean by human rights? There has been philosophical,
legal and political argument about that for thousands of years. But for
the Commission, human rights are fairly well defined.

Human rights for the Commission's purposes are those set out in certain
international instruments on human rights, incorporated in federal law
in the Human Rights and Equal Opportunity Commission Act 1986. In Australia,
therefore, setting of national standards on human rights is directly linked
to international standards on human rights. In 1945, the international
community, through the United Nations, commenced the process of formulating
fundamental rights which all nations would recognise for all people. In
1948, the United Nations General Assembly adopted the Universal Declaration
of Human Rights. That Declaration sets out basic rights which all people
are entitled to enjoy. I emphasise, all people.

One of the fundamental principles of the international law of human rights
is that all people are entitled to protection of their rights without
discrimination. That includes people with disabilities of any kind: physical,
intellectual, or psychiatric.

Specific Legislation

Later human rights instruments have developed the principles of the Universal
Declaration of Human Rights in more detail, and applied them to particular
problems and the needs of specific groups. So, for example, there is:

  • the Convention on the Elimination of All Forms of Racial Discrimination,
    on which the Racial Discrimination Act 1975 is based; and
  • the Convention on the Elimination of All Forms of Discrimination
    Against Women, which provides the basis for the Sex Discrimination Act
    1984.

New Instruments Being Developed

This process of development is by no means finished. Currently before
the United Nations is a Draft Convention on the Rights of the Child. This
Convention offers significantly improved protection for children on a
very wide range of issues. Some of the issues most relevant to many present
would be:

  • rights concerning health care;
  • rights of children in institutional care; and
  • rights of children with disabilities of any kind.

I strongly support Australia signing this Convention as soon as possible
after it is adopted by the General Assembly this month. I hope that individuals
and organisations represented here will also support it; and I will be
pleased to provide more information concerning the Convention to anyone
interested.

Also being developed in the United Nations system is a Draft Body of
Principles and Guarantees for the Protection of Mentally Ill Persons and
for the Improvement of Mental Health Care. I will return to these principles
later, because I believe they provide an important opportunity for raising
standards in Australia.

But I want to first focus on the standards which presently exist. The
Human Rights and Equal Opportunity Commission Act incorporates the International
Covenant on Civil and Political Rights. This Covenant imposes clear obligations
on the Australian Government to recognise and protect certain rights for
all individuals without discrimination. Let me re-emphasise; that includes
people with disabilities of any kind, including psychiatric disabilities.
The rights set out include:

  • the right to freedom from cruel, inhuman or degrading treatment;
  • the right to liberty and security of person, including freedom from
    arbitrary detention;
  • the right to freedom from arbitrary interference with privacy, correspondence,
    home or family life;
  • the right to equality before the law and the right to the equal protection
    of the law.

The Human Rights and Equal Opportunity Commission

The Australian Parliament has given expression to this body of international
human rights law largely through the mechanism of a special Commission.
Australia's first federal Human Rights Commission was set up by the Fraser
Government in 1981. Human rights, for the purposes of the Commission's
jurisdiction, were defined by reference to certain international instruments
on human rights to which I will refer later.

That Human Rights Commission was seen to some extent as an experiment.
A body giving effect to international human rights standards was a new
development for Australia. The procedures to be used by the Commission,
particularly the emphasis on resolution of disputes by conciliation, rather
than by more traditional legal processes, were also novel and were the
subject of some controversy.

However, after five years experience, our Commission, the Human Rights
and Equal Opportunity Commission, was set up by the Hawke Government in
December 1986. The Commission is composed of a part-time President and
four Commissioners: the Human Rights Commissioner, the Race Discrimination
Commissioner, the Sex Discrimination Commissioner and the Privacy Commissioner.

In addition to administering the Racial Discrimination Act, the Sex Discrimination
Act, which incorporate the international conventions relating to race
and sex, and the Privacy Act, the Commission also has wider human rights
responsibilities under the Human Rights and Equal Opportunity Commission
Act 1986. These are defined by reference to:

  • the International Covenant on Civil and Political Rights;
  • the Convention on Discrimination in Respect of Employruent and Occupation
    (International Labour Organisation Convention No. 111);
  • the Declaration of the Rights of the Child;
  • the Declaration on the Rights of Disabled Persons; and, the anachronistically
    titled
  • Declaration on the Rights of Mentally Retarded Persons.

Activities of the Commission

By way of introduction to the Commission's work in the disability field,
I want to give you a very brief overview of some of the recent activities
of the Commission across the range of issues for which it has some responsibility.
I think this is important, both as an indication of what is possible,
and of the sorts of competing demands that are placed upon us.

Among the more notable features of our work in the last year were the
release of the Report of the Homeless Children Inquiry, follow-up action
on the Toomelah Inquiry, the commencement of a National Inquiry into Racist
Violence and the expansion of the Commission's role into the area of privacy
protection.

Public Inquiries

The charter of the Human Rights and Equal Opportunity Commission is to
promote the acceptance and observance of human rights and equal opportunity
throughout Australia. We see public inquiries on issues of major concern
as one of the most effective ways to achieve this objective.

An important test of this strategy was the release in February this year
of our Report on Homeless Children. The Inquiry's findings received comprehensive
coverage across Australia, generated considerable public debate and prompted
an encouraging response from governments and the community. The final
success of the Inquiry can only be measured by the extent to which its
major recommendations are accepted. I will continue to monitor responses
to the Report over the next twelve months and am reconvening the Inquiry
in four weeks to hear evidence from governments. However, there is no
doubt that the Homeless Children Inquiry has helped to place this issue
squarely on the national agenda.

The National Inquiry into Racist Violence, headed by the Race Discrimination
Commissioner, Irene Moss, was announced in December last year following
an apparent disturbing increase in organised racist violence in various
parts of Australia. While still in its early stages, the Inquiry has already
attracted a good deal of community. interest and debate. More than 100
written submissions have been received and public hearings are underway,
with the report of the Inquiry due to be released in early 1990.

The Commission's policy of monitoring the results of its public inquiries
was reinforced this year with the release of the Toomelah Review. The
initial report of that Inquiry, which investigated living conditions in
Aboriginal settlements on the NSW/Queensland border, was released in June
1988. The Toomelah Review documents very substantial improvements at Toomelah
in the six months following our report.

Complaint Handling

A vital part of the Commission's work is the handling of individual complaints.
The major policy objective in this area is to resolve complaints wherever
possible through conciliation; an informal, confidential and comparatively
low cost alternative to litigation. Over 90% of the complaints we handle
are resolved through conciliation. That is, I believe, an enormous advantage
to those we assist; including Australians with disabilities.

Work with NGOs

A key policy of the Commission is to work closely with a wide spectrum
of community organisations on issues of common concern. I believe this
will be very important in the area of disability.

Discrimination on the basis of age is another area in which the Commission
has been consulting closely with representative community groups; including
the Council on the Ageing and the Youth Affairs Council of Australia.

Submissions on Legislation and Policy

One of the most important functions of the Commission is to promote the
protection of human rights in government legislation and policies. We
made submissions to a number of government inquiries in 1988-89, on issues
ranging from the employment of people with disabilities to human rights
abuses in Australia's external territories.

The Declaration on the Rights of Disabled Persons

As federal Human Rights Commissioner, such authority as I have in the
area of disability derives from the Human Rights and Equal Opportunity
Commission Act. This Act incorporates certain rights of people with disabilities
into federal law, but only in an indirect and incomplete way. The Act
is therefore a starting point, but very much only a starting point.

The Act incorporates the United Nations Declaration on the Rights of
Disabled Persons and the Declaration on the Rights of Mentally Retarded
Persons; I apologise for the anachronistic terminology. In spite of their
age, the Declarations do set out a range of very important rights.

The Declaration of the Rights of Disabled Persons states that disabled
persons have:

  • the inherent right to respect for their human dignity;
  • the same fundamental human rights as their fellow citizens;
  • the right to a decent life, as normal and full as possible;
  • the right to legal safeguards against abuse or any limitation of
    rights made necessary by the severity of a person's handicap, including
    regular review and the right of appeal;
  • the right to any necessary treatment, rehabilitation, education,
    training and other services to develop their skills and capabilities
    to the maximum;
  • the right to economic and social security;
  • the right to productive employment;
  • the right to have their needs considered in economic and social planning;
  • the right to family life;
  • the right to participate in all social activities;
  • the right not to be subjected to more restrictive conditions of residence
    than necessary;
  • the right to qualified legal assistance to protect their rights;
    and
  • the right to protection against exploitation or discriminatory, abusive
    or degrading treatment.

The Declaration on the Rights of "Mentally Retarded" Persons
covers the same range of rights, and adds

  • the right to a qualified guardian where this is necessary to protect
    a person's well-being or interests.

These Declarations, then, recognise a wide range of rights. But they
do not themselves constitute sufficient protection for these rights. They
effectively represent an outline of a program for action; but they do
not, of themselves, constitute an effective code of legal protection.

Like most international documents on human rights, the Declarations envisage
that more detailed legal protection and practical measures will be developed
by each country. In that process, we in Australia have a long way to go.

Jurisdiction of the Commission

Federal law, in particular, the Human Rights and Equal Opportunity Commission
Act itself, gives the rights I have just enumerated only limited protection.
Some of these limitations exist for constitutional reasons. But there
is certainly more that could be done under existing federal constitutional
powers.

The Act only applies concerning "acts or practices" of the
Commonwealth itself and to territories other than the Northern Territory.
It has no direct effect on actions of State governments or the private
sector. The only exception to this is our jurisdiction over discrimination
in employment under International Labour Organisation Convention No. 111;
but this jurisdiction does not presently include disability. I will discuss
this aspect later. The Act does not make breaches of the rights set out
unlawful, even for Commonwealth government authorities.

Nor does it provide for enforceable remedies. In dealing with complaints
involving rights of people with disabilities, the Commission can inquire
into the complaint, and attempt to resolve it by conciliation. But if
a conciliated settlement cannot be reached my only power is to report
to the Federal Government. We cannot make any binding determination or
orders which can be enforced; as in the areas of sex discrimination, race
discrimination and privacy protection.

Apart from handling individual complaints, however, the Commission has
the power to review existing or proposed federal legislation affecting
human rights, including the rights of people with disabilities. But again,
this is only a power to make recommendations.

Results under these mechanisms

The Commission has been active on a variety of issues affecting the rights
of people with disabilities. I believe we have achieved significant results
within our existing resources and powers, but it is clear that more extensive
and effective protection of rights is necessary.

It may be instructive if I outline several examples of issues we have
dealt with.

Public Service Employment - Medical Standards

One of the first major issues which emerged from complaints lodged with
the Commission involved employment of people with disabilities in the
Commonwealth Public Service itself.

During 1987, the Commission received a number of complaints of discrimination
based on various intellectual and psychiatric disabilities. Employees
with histories of mental health problems were failing to meet the medical
standards applied for permanent appointment to the Australian Public Service.
All the complainants were working in positions with no particular medical
requirements, and all had satisfactory work records. Similar complaints
were received from people with various physical disabilities.

I found it particularly disturbing that in a number of cases, complainants
who had been recruited into the Australian Public Service under affirmative
action programs for people with disabilities, found themselves, twelve
months later, rejected from the Service because they did not meet the
medical standards applied for permanent appointment.

These cases were taken up with the departments concerned and each was
successfully resolved. But I was also concerned to address the matter
at a broader policy level.

Our initial investigations made it clear that there were problems with
the general medical assessment procedures applied by Commonwealth Medical
Officers and individual departments. The complaints highlighted basic
deficiencies in the handbook used by Commonwealth Medical Officers. We
prepared a submission identifying these problems and took the matter up
with the Public Service Commissioner and the heads of federal departments.

In this submission we recommended that there should be no mandatory medical
examination for permanent appointment to the Australian Public Service;
except in relation to jobs with identifiable medical risks, or where necessary
for assessment for superannuation purposes. Other recommendations included
giving applicants more information about medical assessment procedures,
and a right to have their assessments reviewed.

We have followed up these recommendations with the Department of Community
Services and Health and the Public Service Commissioner; to date the response
has been encouraging.

Specifically, as a result of the Commission's involvement in this area,
programs have been undertaken to train Medical Officers and other senior
departmental officers in disability and human rights issues. Commission
staff have been invited to participate in this training, to assist in
preventing future cases of discrimination.

Employees' Association Membership

My second example concerns a complaint lodged by an employees' association
on behalf of its members with disabilities, alleging that a disabled persons'
scheme administered by a major government instrumentality, employing over
100,000 staff, was discriminatory.

The scheme provided that persons with disabilities were only entitled
to be appointed as temporary staff, thus making them ineligible for benefits
available to permanent staff, including rights of transfer and promotion.
The complainant also alleged that the corporation fixed the salaries of
those employees as a percentage of other employees' salaries on the assumption
that the output and productivity of staff with disabilities would be less.

Appointment to the permanent staff could only be obtained by sitting
an entrance examination which failed to take into account the needs of
disabled candidates.

The matter was successfully conciliated with the two parties agreeing
to an 'on-the-job' review of all staff with disabilities employed under
the disabled persons' scheme. This review included an analysis of duties,
job satisfaction, work progress and scope for career development It also
appraised the special needs of each employee with a disability in relation
to access to training and the provision of physical aids. A specialist
consultant was appointed to assist the review and to recommend changes
in areas such as job design. It was also agreed that the consultant would
advise on the development of management and staff training programs relevant
to these employees, and that consideration would be given to additional
measures for persons with disabilities employed.

This example demonstrates an important part of the complaint handling
work; that a single complaint can lead to improvements to the situation
of a large number of people with disabilities, especially if the resolution
involves system-wide change.

Immigration

In the last 2 1/2 years, I have also received many complaints of discrimination
against people with disabilities in the administration of Australian immigration
policy.. The migration regulations included a list of 'prescribed diseases'
which included various disabilities.

It became clear that the immigration authorities were failing to separate
two sets of issues: whether a person's condition represented a danger
to public health, as in the case of highly infectious diseases, and whether
their condition was likely to lead to 'excessive' costs for the health
and social security systems. In addition, decision-making in a number
of cases seemed to be based on an inflexible approach. People with some
disabilities were being virtually automatically excluded; rather than
a proper assessment being made of individual and family circumstances
in each case.

The Commission took up a number of individual cases. But I also took
up the issue at a broader policy level, in a submission to the Committee
to Advise on Australia's Immigration Policies.

I am pleased to say that the Committee accepted our recommendation that
there should be a separation of public health, illness and disability
issues in the application of our immigration policies. This has important
implications for family reunion applications where the intending immigrant
is disabled.

The Commission continues to receive complaints in this area. What is
needed for fair decision making is that . the guidelines on which the
Department makes decisions, and the cost-benefit analysis applied, should
be publicly available for scrutiny. That way we could have more confidence
that fair decisions will be made from the outset, rather than having to
address the matter only after complaints are made.

A House of Representatives Committee Inquiry has recently been announced
in this area and I will be making further submissions to that Inquiry.

These examples indicate that it is possible for the Commission, within
its limited resources and powers, to achieve results on some issues by
a combination of individual complaint handling and its broader functions
of legislative and policy review. But they also point to deficiencies
in the structures for protection of the rights of people with disabilities;
even within the Federal Government's own areas of operation, and notwithstanding
the passage of equal opportunity and affirmative action legislation.

Employment of People with Disabilities - Senate Inquiry

I recently prepared a detailed submission to the Senate Inquiry on Employment
of People with Disabilities. That submission identified a number of areas
of concern and made a range of recommendations.

Discrimination in federal public service employment, including discrimination
on the basis of disability, is already prohibited under the Public Service
Act. But it is quite clear that as well as measures prohibiting acts of
discrimination, positive measures are needed to secure effective access
to employment for people with disabilities.

The Public Service Act was amended in 1984 to require departments to
implement Equal Employment Opportunity (E.E.O.) programs for people with
disabilities. Each program was required to provide a detailed plan for
enhanced career opportunities for people with disabilities. Each department
was required to report to the Public Service Board on the development
and implementation of these programs, and an E.E.O. Bureau was set up
within the Board to promote and monitor these programs.

A central element of the E.E.O. Bureau's policy was the principle of
reasonable adjustment. Departments were expected to make reasonable adjustments
to work environments to reduce or eliminate the effects of disabilities
and enable people with disabilities to compete more effectively, on merit,
for recruitment and career advancement.

This policy was regarded as highly successful. However, in the reorganisation
of the Australian Public Service undertaken in 1987, the Public Service
Board was abolished, and with it the E.E.O. Bureau.

Its functions have been taken over to some extent by a much smaller unit
within the new Public Service Commission, and by the Department of Employment
Education and Training. Responsibility for E.E.O. programs has to a large
extent been devolved to individual departments.

In a recent submission to the Senate Inquiry, I expressed serious concern
that these changes have dissipated the successes achieved in E.E.O. programs
through the 1970s and 1980s. Many essential functions cannot be performed
effectively by individual departments acting alone. For example, few individual
departments have adequate E.E.O. data bases to guide policy. Despite the
theoretical protection provided in the Public Service Act, our submission
concluded that it is now possible for departments to avoid an effective
commitment to equality of employment opportunity for people with disabilities.

The Federal Government's recent announcement of increased funding for
recruitment programs for people with disabilities into the Australian
Public Service through the Department of Employment Education and Training
is very welcome. I hope it signals a renewed commitment to effective measures
for achieving equality of opportunity for people with disabilities in
federal public employment.

However, the Program to date has only involved a handful of people; so
much more needs to be done in this area.

I have been talking mainly about rights concerning employment. The rights
recognised by the United Nations declarations cover a much wider range.
But there is a strong connection between equal employment opportunity
and enjoyment of other rights.

On the one hand, for many people, access to employment opportunities
determines how effective their access is to other opportunities in life.
On the other hand, effective access to employment for many people with
disabilities cannot be achieved solely by legislation proscribing employment
related discrimination, or other directly work-related measures.

The Commission's submission to the Senate Inquiry on Employment for People
with Disabilities identified a number of connected issues in this respect.
Our recommendations included

  • restructuring of income support for people with disabilities to remove
    disincentives to securing employment;
  • adequate allowances for people with disabilities undertaking education
    or training;
  • improved labour market and rehabilitation programs;
  • anti-discrimination legislation.

Another major area addressed by the Commission submission on employment
for people with disabilities is the effect of accommodation on employment
opportunities. Some of you may be aware of a report released by the Commission
on Accommodation Options for People with Severe Disabilities, prepared
by a consultant, Cameron Engel. That report focussed on Queensland and
basically concluded that there is no coherent policy in this area.

The recently announced Inquiry by the Senate Standing Committee on Community
Affairs into Accommodation for People with Disabilities, gives an important
opportunity to address the problems in this area. I will be making a submission
to this Inquiry. People with severe disabilities may have little choice
but to reside in an institution such as a nursing home. Some such institutions
do not encourage residents to participate in employment, education or
training. Routines, a sheltered environment and lack of information may
in fact constitute positive barriers to participation.

The Federal Government's Disability Services Act offers the potential
for positive developments in many respects. In my view the Act, in linking
federal funding of services to human rights standards, represents an extremely
important model which should serve as a precedent in other areas.

However, I am concerned that the potential of the Act for improving services
for people with disabilities is not being achieved in practice. Our submission
to the Senate Inquiry on Employment for People with Disabilities recommended
that there should be more effective mechanisms for implementation of the
standards and objectives which have already been legislated in the Disability
Services Act.

In this context I welcome the announcement in the last federal Budget
of increased funding for information and advocacy services, and of the
introduction of new complaints mechanisms for the users of services.

The Department of Community Services and Health has recently written
to the Commission to suggest a meeting to discuss initiatives to ensure
more effective implementation of the Disability Services Act. Again, this
is welcome.

A major emphasis of the Act is on encouraging greater movement of people
with disabilities into the community, and into open, or competitive, employment.
But in this process people with disabilities still face serious barriers.

Limitations in the Protection of these Rights

I now want to return to the present incomplete protection under Commonwealth
law against discrimination based on disability in employment and other
areas of life in our society.

As I have already mentioned, federal legislation presently gives the
Human Rights and Equal Opportunity Commission jurisdiction in cases involving
the rights of people with disabilities only where Commonwealth laws or
actions are concerned.

However, the Commission does have jurisdiction to inquire into complaints
of discrimination in employment, including State government and private
sector employment, on various grounds.

These grounds do not currently include disability. However, International
Labour Organisation Convention No.111, on which this jurisdiction is based,
provides for additional grounds of discrimination to be specified by national
governments in consultation with employers and unions. In accordance with
this, the Human Rights and Equal Opportunity Commission Act provides for
further grounds of discrimination to be added to the Commission's jurisdiction
by regulation. In my view, High Court decisions in recent years make it
quite clear that such regulations would be constitutionally valid.

The Federal Government's National AIDS Strategy, recently released, states
that regulations will be made to add discrimination based on AIDS or HIV
status to the Commission's jurisdiction. I can see no reason why similar
regulations should not be made concermng employment discrimination based
on disability in general.

State Legislation

Four States - New South Wales, Victoria, South Australia and Western
Australia - now offer some protection for the rights of people with disabilities
under anti-discrimination law. There is considerable variation in the
terms of this legislation, in the definitions adopted and the scope of
the protection offered. I note in passing that uncertainties and inconsistencies
in definitions cause far too many problems in this area.

In New South Wales, Victoria and Western Australia, discrimination based
on either physical and intellectual impairment is unlawful in a range
of areas, including employment, accommodation, and provision of goods
or services. The Victorian and Western Australian definitions also extend
to at least some cases of psychiatric disability. In South Australia at
present, only physical impairment is covered, although there is presently
a Bill before the South Australian Parliament to extend the Equal Opportunity
Act to include intellectual impairment.

State legislation is therefore important, but inadequate in a number
of ways.

Most obviously, Tasmama, Queensland, the Northern Territory and the A.C.T.
lack any legislative protection against discrimination m this area, other
than the very limited protection offered under federal law.

Most State laws in this area are also confined in their coverage to a
negative prohibition of overt acts of discrimination. There is little
to address more systemic problems, such as:

  • ractices which constitute barriers to people with disabilities, without
    any discriminatory intent necessarily being present; or,
  • more importantly, the need for positive measures to provide equal
    opportunity for people with disabilities.

Measures on Intellectual Disability

Protection of the rights of people with intellectual disabilities raises
several issues which are, to some extent, distinct from those affecting
people with physical disabilities.

A right which is absolutely fundamental in this context is the right
for people to be able to make their own decisions to the maximum extent
possible, and to have their rights and interests respected where they
lack capacity to make their own decisions.

Our Commission's direct role in this area is limited. Most of these issues
are presently matters of State legislation and administration.

However, under existing Federal legislation the Commission has been involved
in the issue of who should have the power to consent to radical surgery
on behalf of a child not capable of making a full and informed decision.
This involvement has been through our power to intervene in court proceedings
to ensure that basic human rights are taken into account by the court.

This is an important power, but one which we exercise rarely because
of the costs involved.

Last year the Family Court requested the Commission to intervene in a
case concerning a teenage girl with severe developmental disabilities.
Her parents, supported by some medical professionals, wanted a hysterectomy
performed on her to avoid various problems which they feared would occur
as she matured. The Disability Rights Centre in Sydney, also supported
by medical experts, sought an injunction to stop the operation.

The Commission in its submissions drew the Court's attention to relevant
human rights principles. It did not argue that such an operation should
never be performed, but rather that it should only be performed if, and
when, it was shown to be clearly necessary.

The Court in that case took a rather different approach, stating in effect
that it was the right of parents to make such decisions and that the Courts
should generally not interfere.

However, in a subsequent and similar case in Victoria, where the Commission
again made submissions, the Chief Justice of the Family Court took a position
much closer to the principles proposed by the Commission. He stressed
that the rights of parents in such cases should not be over-emphasised
at the expense of the rights and interests of the child, and thought that
non-therapeutic operations should not be performed without court consent.

The Commission intervened in these cases to ensure that the rights of
the children concerned received adequate consideration.

Some States now have guardianship legislation which in many cases may
offer a better means of dealing with issues of consent to medical treatment.
Most recently, the New South Wales legislation in this area was finally
proclaimed and a Guardianship Hoard established. I have written to the
responsible Minister welcoming this development, but also stressing the
need for the operation of the legislation to be regularly reviewed and
for regular consultation with appropriate organisations representing people
with disabilities.

Illness and Disability

An area which presents considerable problems under present legislation
is the relationship between disability and illness.

This arises in some cases concerning physical disabilities. I have already
referred to issues of this kind in immigration policy.

There are also, for example, problems about whether present legislation
against discrimination based on impairment covers discrimination related
to illness, including HIV infection.

This leads me into one of the major points I want to address today.

Mental Illness

In my view many of the most pressing issues relating to deficiencies
in legislation dealing with disabilities concern mental illnesses. There
are problems with legislation affecting people psychiatric disabilities,
or facilities available for them, or both, in all Australian jurisdictions.

In several States, recent inquiries have brought to light cases of shocking
abuse and neglect, some going back over many years.

In New South Wales, an Inquiry into the State's mental health system
has been occupied for months with the disturbing evidence concerning just
one institution; the Chelmsford Private Hospital. According to evidence
already made public, violations of human rights involved were clearly
horrific. The fact that such situations can continue for so long indicates
to me that there are serious inadequacies in the legislative and administrative
mechanisms which exist to ensure. that institutions meet acceptable standards
and that the rights of residents are protected.

It is no use having standards which are set, without mechanisms to ensure
that they are met. We must therefore focus our energies; not only on law
reform but on a rigorous examination of existing regulations and the way
they are administered in practice.

International Developments

One of the problems in achieving effective protection of the rights of
mentally ill people on a national basis is that there are at present no
clear and specifically applicable international standards in this area.

For constitutional reasons, human rights protection at the federal level
in Australia is largely based on international instruments in conjunction
with the Federal Parliament's power to legislate on external affairs.

As I mentioned in my introduction, there is a body of principles and
guarantees for the protection of the rights of mentally ill persons currently
being developed within the United Nations system.

At present, these principles focus, in particular, on the small minority
of people suffering from mental illness who need to be admitted involuntarily
to a mental health facility. Obviously these persons are especially vulnerable
and their basic rights require special protections.

To give some examples, the draft body of principles includes:

  • the right of persons with a mental illness to be free from exploitation,
    abuse and degrading treatment or discrimination (Article 3.2,3.3);
  • the right to exercise the full range of human rights, subject to
    a court decision as to any incapacity (Article 3.4);
  • the right to have a guardian appointed if the person is incapable
    of managing his or her own affairs (Article 3.5);
  • the right of patients in mental health facilities to be informed
    promptly of their rights (Article 4); to freedom of communication and
    correspondence; to receive visitors regularly, including legal representatives;
    and the right to privacy (Article 5);
  • the right not to be diagnosed as mentally ill except in accordance
    with proper standards (Article 6); and
  • the right to proper standards of care (Article 8).

In my view this body of principles offers an opportunity for substantially
improved protection of human rights in this area. I will refer to ways
of taking up this opportunity at the conclusion of these remarks.

Where to from here?

This review of the present position indicates a wide range of issues
requiring our immediate attention. There are several inquiries and initiatives
underway which relate to some of these issues. But I think it is clear
that many of the issues are only being addressed in a piecemeal fashion.

United States Draft Legislation

I want briefly to draw an international comparison to show what is possible.
In the United States, a federal Act providing wide protection for the
rights of people with disabilities is currently under consideration. The
Americans With Disabilities Act will apply to people with physical or
other impairments. It also specifically includes people affected by AIDS
or the HIV virus. The legislation will prohibit discrimination in either
the public or private sector in relation to:

  • employment;
  • accommodation;
  • services;
  • transportation; and
  • telecommunications.

In addition all federal departments and agencies, state and local governments
will also be barred from discriminating in the provision of public services.

The Act will impose a number of positive requirements as welt as barring
discrimination in a more narrow sense. New buses, trains and subways will
be required to be accessible to people with disabilities. Most new or
renovated buildings, and some existing buildings, will have to comply
with accessibility standards. Most employers, whether in the public or
private sector, will have to comply with the principle of "reasonable
accommodation" to make employment and promotion opportunities accessible
to people with disabilities.

The legislation clearly provides for enforceable remedies for breaches
of these rights.

This Act, therefore, will provide wide ranging protection on a uniform
national basis. It provides a striking contrast with the present position
in Australia.

I want to emphasise that, like the Australian Federal Government, the
United States Government has limited legislative powers. The Americans
With Disabilities Act therefore involves a much bolder use of federal
power than has been attempted in Australia to date. In the United States,
Federal legislation on human rights uses every available source of power:
federal power over interstate commerce; conditions on grants of federal
funds; conditions on contracts with the private sector, and other "heads
of power" - as lawyers like to describe them.

In Australia, the Disability Services Act represents an important precedent
in the use of more imaginative models to achieve human rights objectives.
But clearly, much more remains to be achieved.

I want to emphasise that this new legislation in the United States did
not simply happen of its own accord. Ten years ago, when I was working
in Washington, there was intense lobbying by advocacy groups for people
with disabilities. In all, 20 years work was needed to achieve the political
support and political will necessary to get to this point. Nor is the
process complete. While the legislation now has the support of the U.S.
Senate and of the white House, it is yet to be finally cleared by the
third crucial part of the troika, the House of Representatives.

The Implications of a Rights-Based Approach

The approach of this American Bill emphasises something that the Commission
was able to demonstrate in the Homeless Children Inquiry; that a rights-based
approach, as opposed to a 'welfare' approach, can be of enormous benefit
in analysing and addressing the needs of disadvantaged Australians.

The problem of child and youth homelessness was known before the Inquiry
commenced, though not as well-documented and widely publicised.. The distinctive
contribution of our Inquiry was that its approach was based on human rights
instruments rather than purely on more general welfare considerations
and arguments.

This has two sets of consequences.

The human rights basis of the Inquiry affected the approach to recommendations
for solutions to the problems identified. Human rights provisions do not
dictate what social policies and programs should be instituted to deal
with a problem such as child and youth homelessness down to the last detail.
But they do emphasise obligations which governments have undertaken and
which they must honour.

The second kind of implications of an approach based on rights deal with
practical implementation. Human rights instruments provide standards around
which the efforts of advocacy groups and service providers can be organised.
They provide standards to guide government action and standards which
advocacy groups can use to measure governments' actions against.

Commission's Program for Action

I have outlined the basis on which the Commission operates, and the sort
of activities we have undertaken. I have also identified the limitations
of our jurisdiction in this area. I want now to turn to ways in which
we can deal with these limitations, to effectively ensure the rights of
people with disabilities.

I indicated recently in Melbourne that promotion of the rights of people
with disabilities would be the area on which I intend to focus my activities
over the next 12 to 18 months. The range of activities to be undertaken
will be known as the Commission's Program for Action on Disability.

This program has a number of elements, and I am delighted to have the
opportunity of this Oration to outline them to you. But the central aim
is to put the Commission in a position to be able to give a comprehensive
report to the Federal Government by the end of next year, on the legislative
and programmatic steps that are required to ensure compliance by Australia
with international human rights standards which we have undertaken to
honour.

Physical and Intellectual Disability

Last year I commissioned a study to examine the need for federal legislation
to protect the rights of people with physical or intellectual disabilities.

A discussion paper was finalised this year by the National Council on
Intellectual Disability in consultation with ACROD and Disabled People's
International. This method was considered the most appropriate due to
the extensive experience and infrastructures which exist in the areas
of physical and intellectual disabilities. The tasks of the organisations
involved included gathering, analysing, summarising and presenting existing
materials and experience in a way which wilt enable us to focus on the
most widespread and serious areas of discrimination.

The discussion paper identifies important recommendations for legal and
practical measures in the areas of:

  • employment and occupation;
  • education;
  • accommodation;
  • provision of goods and services; and
  • rights in the criminal justice system.

The next stage of the project is the release of this discussion paper
for consultation; so that a wide range of people concerned with disability
can comment on the issues the paper raises and suggest priorities within
it. This paper will be released in Human Rights Week (the first week in
December) and will be open for discussion until the end of April 1990.

I believe this will provide a very thorough picture of the problems that
need to be addressed. The Commission will then make a detailed analysis
of the material received, in terms of international human rights standards
and our national obligation, and identify the specific actions which governments
need to take to meet those obligations.

Mental Illness and Psychiatric Disability

The discussion paper, and the subsequent consultation and analysis deals
only with issues of physical and intellectual disabilities. The discussion
paper specifically excluded mental illness and psychiatric disabilities,
for two reasons.

First there are differences between the organisations, infrastructures,
institutions and processes in this area and that of intellectual and physical
disability.

It also appeared to us that physical and intellectual disability on the
one hand, and mental illness and psychiatric disability on the other,
present a number of separate issues which need to be dealt with separately.

Some time ago the Commonwealth, State and Territory Health Ministers
received a major report on mental health and mental health services; The
Eisen-Wolfenden Report. I regard this Report as significant, at least
insofar as it recommended that there should be a co-ordinated national
policy on mental health services, involving all levels of government as
well as non-government agencies and organisations. However, I must say
I find it astounding that in dealing with Commonwealth responsibilities
in this area, no mention is made of the Federal Government's obligations
in respect of basic human rights for disabled Australians.

I will be seeking discussions with government in the next few months
to ascertain the extent to which the consultative process following from
this Report has dealt with issues of concern to me as federal Human Rights
Commissioner.

The major human rights issues in relation to mental illness which have
received attention as human rights issues have concerned involuntary treatment
and detention. Human rights questions have generally been raised by people
seeking to restrict detention and involuntary treatment. (I should make
it quite clear in this context that the Human Rights and Equal Opportunity
Commission has no connection with the Citizens Commission on Human Rights.)

The International Covenant on Civil and Political Rights recognises the
rights to privacy, to liberty and security of person, and it prohibits
arbitrary detention. It does not give any detailed guidance on the circumstances
in which involuntary treatment is permissible or how it should be regulated.
But as an international treaty it could serve as the legal basis for detailed
national legislation setting standards on these issues.

The Declaration on the Rights of Disabled Persons adds more detail, recognising:

  • the right of people with disabilities to live with their families
    if possible;
  • the right to participate in social, cultural and recreational activities;
  • the right not to be subjected to more restrictive conditions of residence
    than required by his or her condition, and the right that if stay in
    any specialised establishment is indispensable, the environment and
    living conditions shall be as normal as possible;
  • the right to protection from abusive or degrading treatment;
  • the right that any restriction on their rights should be subject
    to legal safeguards against abuse, including provision for appeal and
    regular review.

These rights, which might generally be classed as "liberty rights",
are important, but they do not exhaust all the issues in this area. The
human rights instruments also deal with a range of positive rights; rights
to certain types and standards of services and benefits. Some of the rights
in this category set out in the Declaration on the Rights of Disabled
Persons include:

  • the right to measures to enable people with disabilities to become
    as self-reliant as possible;
  • the right to treatment, rehabilitation, education, counselling and
    other services to develop their skills and capabilities to the maximum
    and hasten their social integration or reintegration;
  • the right to economic and social security and a decent living standard;
  • the right to employment and
  • the right to legal aid when necessary to protect their rights.

There is also, most importantly, a right to protection from discrimination.

Why an Inquiry?

I have been holding discussions with a range of people concerned with
mental illness, and these discussions confirm my view that the treatment
of our mentally ill is a national disgrace. I intend to hold further consultations
with organisations concerned with mental illness prior to announcing the
terms of reference for this Inquiry, and I take this opportunity to invite
ACROD to participate in those consultations.

The Homeless Children Report

It is not accidental that my decision to conduct a national inquiry in
the area of mental illness came at this point. One of the things which
caused me the gravest concern during that inquiry was evidence, in all
States and Territories, that there are an increasing number of mentally
ill children and young people turning up at crisis refuges. That evidence
is, I believe, something that, as a nation, we must immediately respond
to.

It is quite clear that problems of mental illness increase the risk
of people, including children, becoming homeless. It is equally clear
both from evidence I have gathered here and overseas, that homelessness,
in turn, exacerbates the risks and complications of mental illness.

Conclusion

The Program for Action on Disability is, in summary:

  • the release next month of a major discussion paper on physical and
    intellectual disability;
  • a process of national consultation on it until the end of April 1990;
  • the subsequent analysis of the results of the consultation in terms
    of international human rights standards;
  • the launch of a national inquiry into aspects of mental illness and
    human rights; following discussions with the relevant organisations
    on the terms of reference;
  • concluding with a full report to the Federal Government on legislative
    and other action necessary for compliance with human rights standards.

The Commission has a clear policy of working closely with organisations
like ACROD which have the experience and expertise needed to achieve important
reforms. As I said at the outset, this opportunity to let you know of
our plans is one which I value highly.

The program I have outlined will involve a great deal of further work,
not just for the Commission, but, if it is to be effective, for your organisations
as well. Your record of constructive engagement m challenging government
is well known. I hope that over the coming months, we can cooperate closely
on this programme of action. Effective protection of the human rights
of Australians with disabilities will be a challenge to government - and
to us all.