The Convention on the Rights of Persons with Disabilities
Michael Small, Senior Policy Officer, HREOC
Physical Disability Council of Australia forum, Hobart , 24.10.2007
On March 30 this year Australia lined up with 80 other countries at the UN in New York to sign the Convention on the Rights or Persons with Disabilities
The development of this Convention has been some time coming. Calls had been made for the UN to adopt a Convention recognising the rights of people with a disability since the early 80's with little success.
However, the pressure gradually built and in December 2001, the United Nations General Assembly finally, and with overwhelming support, decided to adopt a resolution to develop a disability convention.
The actual negotiation process itself spanned five years and while this is a long time it was in fact one of the quickest UN Treaties negotiated. The UN, for example, recently concluded a negotiation process over a declaration on the rights of Indigenous peoples which took more than 20 years.
It was also, in UN terms, a revolutionary process, as it involved a high level of participation both by nation states and civil society. In fact, the development of the Convention involved the highest level of participation by representatives of organisations of people with disabilities of any human rights convention, or indeed any other United Nations process, in history.
So far (as of last Friday) 118 countries have signed and 8 have ratified the Convention. This is an overwhelming response, and an indication of the strong international support for promoting the rights of people with disabilities.
This achievement is also particularly rewarding for Australia (which had initially not supported the development of another disability specific Convention), as the Australian delegation and non-Governemnt organisations took an active role in the negotiation process, and offered numerous constructive proposals on a wide variety of issues.
So here we are - the Convention, so long in gestation, has been signed by our Government and many others. But there is still much work to be done to get the Convention ratified and even more to achieve compliance with its various Articles.
The Convention - what is it all about?
The Convention on the Rights of Persons with Disabilities is an international human rights convention which sets out the fundamental human rights of people with disability.
It is made up of two documents, the Convention on the Rights of Persons with Disabilities, which contains the main human rights provisions expressed as a series of Articles and the Optional Protocol to the Convention on the Rights of Persons with Disabilities, which is a more limited document that sets up an individual complaints procedure. Australia has signed the Convention but not the Optional Protocol.
Through the Articles the Convention sets out general and specific obligations for States in relation to specific human rights and fundamental freedoms. These obligations aim to protect different types of rights: civil and political rights, economic, social and cultural rights, and rights to development.
The Convention contains traditional human rights concepts which are general protections found in other thematic human rights conventions.
For example, it outlaws discrimination in all areas of life, including employment, education, health services, transportation and access to justice. But the Convention has added, modified and transformed traditional rights concepts to give them a more specific disability focus. It has added detailed disability-specific interpretations to some of these 'traditional' human rights concepts.
For example, in Article 21 the right to 'Freedom of expression and opinion and access to information' extends the protection against state interference with personal opinion and expression into the positive state obligation to provide public information in accessible formats, and to recognise sign languages, Braille, and augmentative and alternative communication.
The second half of the Convention is made up of implementation and monitoring articles, and operational articles. They set out what is required for implementation, monitoring and reporting of the Convention at both the national and international levels, and the basic arrangements for the administration of the Convention within the United Nations system.
Is it important for Australians with disability?
It is really important to note that the Convention is finalised. There is no further negotiation on its content and while some will express concern about issues it did not fully cover - or cover at all, and others may be disappointed that parts were not more strongly worded the fact is that this is what we have to work with.
Some aspects of the Convention may not seem too novel for us in Australia as we have had a number of protections built into various state and Commonwealth laws for some time, but bear in mind this Convention is an international instrument and its consequences for people with disability in many nation states is far reaching. This is particularly so for many nations in our region.
Nevertheless some of the more sceptical of you may be wondering whether the ratification of an international instrument would in real terms impact the day to day lives of people with a disability in Australia . Advocates in the disability sector have pursued the rights of people with a disability vigorously for decades and have made much progress despite the absence of a disability convention.
However, most of us believe that ratification is important and I think it would be a mistake to underestimate its potential value to the disability and human rights advocacy sector.
In a recent workshop the Commission held for representatives from national advocacy and disability advisory bodies one of the sessions provided participants with an opportunity to list the reasons why ratification was important.
The sort of ideas that came from the group included:
Promotes dignity and pride for a person with a disability
Ratification will benefit the whole community through the promotion of universal design
Provides us with an international benchmark
Provides a framework to support submissions, advocacy and discussion regarding individual and systemic disability issues
Gives further legitimacy to the legislation we already have: DSA, DDA, etc
Will help us to change the culture, put human rights, specifically disability rights, in everyone's head.
Further promote and add foundation to legislative law specific to disability rights
Key advocacy tool re monitoring, implementation, gives DDA stronger context in international law
Assists disability activists/advocates a rights framework to advance people's access to a fair share of public goods and services and ultimately citizenship as opposed to quasi- or conditional citizenship
Binds Australia to a human rights process that is international
Ratification will put the human rights of people with disabilities on the forefront of political, government and community agenda
The Convention: acknowledging and respecting the rights of people with disabilities and ensuring a whole of community approach to societal inclusion in compliance with Australia 's global commitment.
Clear, defined standards and framework for analysing / responding to issues
A new opportunity for people with disabilities to gain value and be recognised as contributors to their respective communities and for this to be acknowledged on the national level by the development of systems, laws, protocols to effectively support this.
Creates an opportunity to hang some major education, awareness raising and target setting in Australia , broader than individual governments, states or sectors.
A human rights framework that will, over time, raise awareness, inform laws, regulations, policy and program delivery
Provide governments, disability sector, industry and service providers with a clear framework for ensuring people with disability are treated fairly and equitably in all aspects of life.
Hopefully assist advocates in their fight for greater resource allocation to people with disabilities
The signing of the Convention by the Australian government was an important symbolic step for disability rights in Australia .
Ratification of the Convention is more than a symbolic gesture, however. It is a legal step. It will make a commitment amongst our international colleagues which will reinforce the national laws we have in place.
The Convention coming into force and ratification
Signing the convention is simply a statement of an intention to consider adoption of the Convention by nation states.
The Convention itself will not come into force at the UN until 20 states have ratified it, at the moment there are only 8 ratifications.
At this stage while the Government has signed the Convention it has not signed the Optional Protocol and there seems to be little prospect that it will.
Each nation state will have its own mechanism for ratification.
In Australia when the Australian Government signs a multilateral or international treaty (an agreement with more than one country), a ‘National Interest Analysis' (NIA) must be prepared. The NIA is prepared from contributions from all Commonwealth agencies with responsibilities that could be affected by the treaty. These contributions report on the implications of the treaty in relation to the agency's functions.
State and territory governments are also consulted in the development of the NIA as well as the broader community. These contributions must then be assessed by the Office of International Law in the Federal Attorney-General's Department, and the Treaties Secretariat in the Federal Department of Foreign Affairs and Trade.
A Regulation Impact Statement (RIS) may also be required if the treaty could affect business regulation or restrict competition. At this stage, it appears the Australian Government is yet to make a decision on whether a RIS is required in relation to the Convention.
The treaty, NIA and RIS (if undertaken) are then tabled in both houses of Federal Parliament, and referred to the Joint Standing Committee on Treaties (JSCOT). JSCOT examines and reports to Parliament on the treaty (usually within a 15 or 20 sitting-day period), and can make recommendations.
JSCOT recommendations may require a formal Government response, which is also tabled in both houses of Parliament. The Executive is then likely to decide if it will ratify the Convention, and if so, if it will make any reservations, understandings, or declarations which I will come back to later.
If the Australian Government decides to proceed to ratify the Convention, the Minister for Foreign Affairs signs the instrument of ratification and, in the case of the Convention, this instrument is then deposited with the Secretary General to the United Nations through Australian Mission to the United Nations in New York . The instrument of ratification will include any reservations, understandings or declarations made by the Australian Government.
Consultations with States and Territories will take place according to the usual formally agreed processes. Experience shows that this could take some time to complete.
The essential implications of these processes for the ratification process are:
Before the Convention is ratified there will be a detailed examination of their implications for Australian governments. This has the potential to positively or negatively impact on the Australian Government's decision on ratification.
This examination is likely to include a number of public consultation processes to which people with a disability and human rights organisations may contribute.
The coming months provide a critical window of opportunity in which to influence key decision makers within both the Federal and state and territory governments in relation to the stance they will take on the ratification of the Convention.
Those interest groups that seek the Australian Government's ratification of the Convention and Optional Protocol need to understand the risks and opportunities inherent in these processes, and to act strategically to secure the best possible result.
Reservations, understandings and declarations
When a state enters into an international agreement such as the Convention it is allowed to do so with some limits or particular interpretations:
It may lodge a ‘reservation' in relation to particular obligations. A reservation limits or avoids the obligation; that is, it modifies the legal effect of the treaty with respect to that state party. Reservations can only be lodged at the time of ratification, and can be withdrawn at any time. Reservations that are incompatible with the object or purpose of the Convention are not permitted. Other States party to the treaty can object to the reservation.
It may lodge a ‘statement of interpretation' or ‘statement of understanding' in relation to a particular element or obligation. These statements set out the state's understanding of the meaning of the element. The statement does not modify the legal effect of the treaty, but provided the interpretation or understanding is plausible, it will influence the way in which the state's compliance with the treaty is assessed by the international monitoring body.
It may lodge a ‘declaration' or ‘statement' about how it intends to implement an obligation. Again, such a declaration or statement does not modify the legal effect of the treaty, but provided the implementation measure is reasonably based on the obligation, it will influence the manner in which the state's compliance with the treaty is to be assessed by the international monitoring body.
As well as these mechanisms, all states are allowed some latitude in the interpretation and application of an international obligation so as to ensure that the obligation can be accommodated with its particular cultural environment and traditions. This is sometimes referred to as the ‘margin of appreciation'.
Human rights activists tend to view reservations, statements of interpretation, and declarations negatively, and indeed, they can result in human rights obligations being undermined. However, it is important to appreciate that they are essentially neutral mechanisms that are equally capable of being used for a positive purpose as they are for a negative one.
For example, the Convention has incorporated as a defence to the obligation of non-discrimination on the ground of disability the concept of ‘disproportionate or undue burden'. This is potentially a less stringent defence that the ‘unjustifiable hardship' test that currently applies under Australian law. It might therefore be a positive step for Australia to lodge a statement of interpretation to the effect that it will interpret ‘disproportionate or undue burden' as having the same meaning as ‘unjustifiable hardship'.
Where to from here?
In June this year the Commission hosted a two day workshop for representatives from key disability advocacy organisations and the disability advisory councils. Our purpose in doing this was to create an early opportunity for the disability sector to discuss strategies aimed at ensuring the Convention was ratified.
At the workshop the Federal Attorney General, Philip Ruddock said that although there is strong in-principle support for the Convention within the Government, the ultimate decision on ratification and its timing will depend on the length of time it takes for, and the outcomes of, consultation with the States and Territories, and the community. His Department has already written to peak disability organisations informing them of the general process and informing them of its intention to initiate the process.
The Attorney noted that there has already been extensive consultation with States and Territories in the development of the Australian Government contribution to the formulation of the Convention so in his view there should be no reason for excessive delay.
At the workshop the Attorney made a commitment to the sector that he will personally pursue a prompt decision, and has already notified his equivalents in the states and territories of his desire to move forward quickly with the NIA.
The Background paper and notes from the workshop are I think required reading for anyone interested in contributing to advocating over the next year for the ratification of the Convention as they set out the key messages and targets for a campaign.
Perhaps the most important of which was to try to ensure that the ratification process and implementation process are kept separate.
The workshop set some basic targets for the campaign:
Ratification of the CRPD by the Australian Government by or on 3 December 2008: the annual date of observance of International Day of Persons with Disability
Signature and ratification of the Optional Protocol of the CRPD at some point in the future. However, signature and ratification of the Optional Protocol is not to be linked to ratification of the CRPD
Continuing commitment from all levels of government to involving the disability sector in Australia 's timely development of the monitoring and implementation mechanisms required under Article 33 of the Convention.
The messages developed by participants in relation to ratification campaign were:
The CRPD recognises the dignity and human rights of persons with disability, and such recognition is necessary and long overdue; it completes the human rights jigsaw in respect of persons with disability;
State and territory governments have been extensively consulted and informed by the Australian Government at each stage in the development of the Australian Government's position on the CRPD. Their views have been taken into account in detail in the negotiation process.
The CRPD is now finalised. It is time to accept the outcome of the treaty negotiation.
The CRPD does not establish any new human rights; it applies existing human rights to the circumstances of persons with disability.
The CRPD assists in clarifying and explaining existing rights and obligations in relation to persons with disability.
Australian laws already comply with the CRPD, and in key respects go beyond the minimum standards required by the CRPD.
While there may remain much to be achieved to fully realise the human rights of persons with disability in the Australian context, the CRPD clearly recognises change is to be pursued through progressive realisation of the obligations set out in its Articles. The fact that improvements are needed, however, presents no barrier to ratification.
The CRPD was developed with a high level of positive collaboration between persons with disability and the Australian Government. There are high expectations among Australians with disability that Australia will move quickly to ratify the CRPD and maintain its international reputation as an active supporter of the CRPD.
Because of the recognition that change is to be pursued by progressive realisation of the Articles the ratification process should focus primarily on Australia 's capacity to show its laws are consistent with the CRPD. The timetable for ratification therefore need not be prolonged.
Participants agreed that these messages should be used consistently in all communications and discussions with all stakeholders .
Campaign co-ordination mechanisms
Participants discussed the need for co-ordination mechanisms for a campaign for ratification and agreed that the Australian Federation of Disability Organisations (AFDO) be approached to auspice a co-ordination unit/task force drawn from interested disability peak and advocacy organisations to work towards CRPD ratification.
That taskforce has been established and includes representatives from AFDO, People with Disability Australia, Queensland Advocacy, the network of disability advisory councils and the National Association of Community Legal Centres.
AFDO has been able to get some funding from FACSIA to undertake some very specific tasks in relation to the consultation over ratification and in particular to develop sector contributions to the NIA.
The taskforce will be working on more strategies for the campaign which interested organisations will be informed about, but at this stage organisations are already pursuing strategies identified at the workshop including:
Making representations to the Australian government to ensure that the consultation process to be undertaken prior to ratification is limited to the essential issues necessary for a decision on ratification, rather than implementation more generally. These questions might be framed as:
Should Australia ratify the CRPD?
Do any Australian laws need to change to comply with the CRPD prior to ratification?
Identifying Parliamentarians from each political party willing to champion ratification of the CRPD and Optional Protocol.
Enlisting the support of state and territory human rights agencies for the campaign, particularly in relation to state and territory government consideration of proposed ratification.
Seeking the support of allies among the broader human rights and social justice communities, including for example, from the Australian Council for Social Service, the state and territory councils for social service, community legal centres, Amnesty International, Australian Lawyers for Human Rights, etc.
Make representations to state and territory Attorneys General in an effort to persuade them to engage quickly in the pre-ratification consultation process, and not raise objections to ratification.
As far as possible promote leadership on ratification from state and territory Attorney General's Departments rather than disability service agencies in view of the formers' cross government role in the review of legislation.
Build awareness and support within the disability sector for ratification and implementation of the CRPD; encourage the disability sector to adopt the campaign messages outlined above; encourage the disability sector not to unnecessarily agitate regarding the progressive implementation of CRPD rights prior to ratification.
Over the coming months, the Federal Government will be making a very important decision - to ratify or not to ratify.
This period of time provides HREOC and the disability sector with a critical window of opportunity to influence key decision makers within both the Federal and State and Territory governments.
Many disability advocacy groups are already actively involved in the ratification campaign but it is important that service providers, human rights advocates and the broader community organisations also get behind it as the consultation process evolves.