The need for increased protection for people with disabilities
The Rights of People with Disabilities: Areas of Need for Increased Protection
Appendices
- I. Guardianship legislation by State/Territory
- II. Human Rights and Equal Opportunity Commission Act 1986: Schedule 4: Declaration on the Rights of Mentally Retarded Persons ; Schedule 5: Declaration on the Rights of Disabled Persons
- III. The Federal Government's National Agenda for Women - Women with a disability
- IV. Education - Legislation & Policies
- Bibliography:
Appendix 1: Guardianship legislation by State/Territory
New South Wales
- Mental Health Act 1958 and Protected Estates Act 1983
- Disability Services and Guardianship Act 1987
Victoria
- Guardianship and Administration Board Act 1986
Western Australia
- Mental Health Act 1962
- Guardianship of the person legislation - possible introduction in Spring 89.
Queensland
- Mental Health Services Act 1974- 87
- Intellectually Handicapped Citizens Act 1986
Australia Capital Territory
- Lunacy Act 1898 (NSW) (as it applies in the ACT)
South Australia
- Mental Health Act 1977
- Aged and Infirm Persons Property Act 1940
Tasmania
- Mental Health Act 1963
Northern Territory
- Mental Health Act 1979
- Aged and Infirm Persons Property Act 1979
- Adult Guardianship Act May 1988
Appendix II
Human Rights and Equal Opportunity Commission Act 1986 Schedule 4: Declaration on the Rights of Mentally Retarded Persons
The General Assembly,
Mindful of the pledge of the States Members of the United Nations under the Charter to take joint and separate action in cooperation with the Organization to promote higher standards of living, full employment and conditions of economic and social progress and development;
Reaffirming faith in human rights and fundamental freedoms and in the principles of peace, of the dignity and worth of the human person and of social justice proclaimed in the Charter;
Recalling the principles of the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Declaration of the Rights of the Child and the standards already set for social progress in the constitutions, conventions, recommendations and resolutions of the International
Labour Organisation, the United Nations Educational, Scientific and Cultural Organization, the World Health Organization, the United Nations Children's Fund and other organizations concerned;
Emphasizing that the Declaration on Social Progress and Development has proclaimed the necessity of protecting the rights and assuring the welfare and rehabilitation of the physically and mentally disadvantaged;
Bearing in mind the necessity of assisting mentally retarded persons to develop their abilities in various fields of activities and of promoting their integration as far as possible in normal life;
Aware that certain countries, at their present stage of development, can devote only limited efforts to this end;
Proclaims this Declaration on the Rights of Mentally Retarded Persons and calls for national and international action to ensure that it will be used as a common basis and frame of reference for the protection of these rights.
1. The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.
2. The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.
3. The mentally retarded person has a right to economic security and to a decent standard of living. He has a right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities.
4. Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lives should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life.
5. The mentally retarded person has a right to a qualified guardian when this is required to protect his personal well-being and interests.
6. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility.
7. Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities.
Schedule 5: Declaration on the Rights of Disabled Persons
The General Assembly,
Mindful of the pledge made by Member States, under the Charter of the United Nations, to take joint and separate action in cooperation with the Organization to promote higher standards of living, full employment and conditions of economic and social progress and development;
Reaffirming its faith in human rights and fundamental freedoms and in the principles of peace, of the dignity and worth of the human person and of social justice proclaimed in the Charter;
Recalling the principles of the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Declaration of the Rights of the Child and the Declaration on the Rights of Mentally Retarded Persons, as well as the standards already set for social progress in the constitutions, conventions, recommendations and resolutions of the International Labour Organization, the United Nations Educational, Scientific and Cultural Organization, the World Health Organization, the United Nations Children's Fund and other organizations concerned;
Recalling also Economic and Social Council resolution 1921 (LVIII) of 6 May 1975 on the prevention of disability and the rehabilitation of disabled persons;
Emphasizing that the Declaration on Social Progress and Development has proclaimed the necessity of protecting the rights and assuring the welfare and rehabilitation of the physically and mentally disadvantaged;
Bearing in mind the necessity of preventing physical and mental disabilities and of assisting disabled persons to develop their abilities in the most varied fields of activities and of promoting their integration as far as possible in normal life;
Aware that certain countries, at their present stage of development, can devote only limited efforts to this end;
Proclaims this Declaration on the Rights of Disabled Persons and calls for national and international action to ensure that it will be used as a common basis and frame of reference for the protection of these rights.
1. The term "disabled person" means any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities.
2. Disabled persons shall enjoy all the rights set forth in this Declaration. These rights shall be granted to all disabled persons without any exception whatsoever and without distinction or discrimination on the basis of race, colour, sex, language, religion, political or other opinions, national or social origin, state of wealth, birth or any other situation applying either to the disabled person himself or herself or to his or her family.
3. Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow-citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.
4. Disabled persons have the same civil and political rights as other human beings; paragraph 7 of the Declaration on the Rights of Mentally Retarded Persons applies to any possible limitation or suppression of those rights for mentally disabled persons.
5.Disabled persons are entitled to the measures designed to enable them to become as self-reliant as possible.
6. Disabled persons have the right to medical, psychological and functional treatment, including prosthetic and orthotic appliances, to medical and social rehabilitation, education, vocational training and rehabilitation, aid, counselling, placement services and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration.
7. Disabled persons have the right to economic and social security and to a decent level of living. They have the right, according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions.
8. Disabled persons are entitled to have their special needs taken into consideration at all stages of economic and social planning.
9. Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement which he or she may derive herefrom. If the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age.
10. Disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature.
11. Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property. If judicial proceedings are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account.
12. Organizations of disabled persons may be usefully consulted in all matters regarding the rights of disabled persons.
13. Disabled persons, their families and communities shall be fully informed, by all appropriate means, of the rights contained in this Declaration.
Appendix III The Federal Government's National Agenda for Women - Women with a disability
Women with a disability experience barriers to full participation in society because of attitudes and prejudices both about disability and about women.
Discrimination against women with a disability is often quite explicit with many being denied basic human and legal rights.
Women with a disability often accept society's image of them and have low self esteem. Assertiveness training, advocacy and women consumer representation on service organisation management are central tactics in the strategy of improving disabled women's sense of self worth.
Women with a disability have a low participation rate in employment. Approximately one third of disabled women are in paid employment, compared with 50 per cent of men with a disability.
Compensation records show that women receive an average of 23 per cent less money from compensation payouts, and that their cases take 13 per cent longer to process to completion.
Until 10 years ago women had little access to Government rehabilitation services whose focus had been on returning blue collar men to the paid workforce.
Eligibility criteria were altered but little publicised. In the past two years the Federal Government has increased the accessibility of rehabilitation services to women and participation rates are rising.
The Federal Government has recognised the under-use of rehabilitation services by women and over the past two years has actively developed new rehabilitation programs relevant to women. In moving away from centre-based medical rehabilitation towards regionalised social and vocational rehabilitation the Government's services are becoming more accessible to women.
Sexuality is a central issue for women with a disability. They have been vulnerable to rape, abuse and sexual harassment in institutions and in the community.
Forced sterilisation and contraception have been amongst the worst features of institutionalisation for disabled women who have traditionally outnumbered men in institutional care.
When they face sexual abuse, women with disabilities are less likely to know about and have the confidence to seek assistance from women's refuges, rape crisis centres and women's health centres.
Mothers of children with a disability often nurture and completely care for those children into adulthood. The intensity of care required generally excludes these mothers from the paid workforce and their role in life often focuses on attending to the needs of their disabled children. This can place considerable stress on family relationships.
The valuable work women perform raising and supporting people with a disability must be recognised by society. Such women deserve respite from full responsibility and assistance in meeting the heavy demands of full-time caring. People with a disability are themselves seeking options other than care by relatives which sometimes forces them into emotionally and physically dependent relationships.
The Government has announced major initiatives to improve services to people with disabilities. They aim to free people with disabilities from institutional care as their only lifestyle choice. Women dominate as patients in institutions, so the new community-based initiatives will be of special importance to women.
Over the next three years about 360 people now in nursing homes will be provided with an attendant in their own homes. In addition1 325 places will be made available in the community to accommodate people with a disability over the next three years, including specially designed housing to allow community-based small scale accommodation.
Large specialist nursing homes that are now providing institutional care to people with disabilities will be assisted to scale down their institutions into smaller community-based supported accommodation and care services.
The Federal Government's Disability Services Program has been giving high priority to respite care to assist those women caring for people with a disability. The new Disability Services Act identifies respite care as one of the highest priority service types in the future.
With Federal Government encouragement, most State Governments are allocating funds under the Commonwealth-State Housing Agreement to priority housing and home modification for people with a disability.
In health, education and employment, the Federal Government is developing affirmative action programs to make mainstream services available to women with a disability.
Specific objectives for the year 2000
- To improve the ability of women with a disability to make their own decisions about their lifestyles.
- To provide equal access to rights, social systems and community services for people with a disability.
- To improve access to income security, education, health, rehabilitation, employment, accommodation, independent living and other community services for women with a disability and for women caring for another or other people with a disability.
Action plan for the next 5 years
The Government plans to:
- remove barriers to women with a disability enjoying individual rights and provide access to information about individual and consumer rights and available services, in cooperation with other Government and non-Government agencies as appropriate;
- support improved access to assertiveness training;
- seek to improve the image of women with a disability in the community through promotional campaigns and affirmative action strategies;
- provide better access to community support services;
- review social security assistance for those with disabilities to ensure that barriers to workforce participation are minimised;
- encourage cooperative planning between the Commonwealth and State Governments in providing services to women with a disability;
- encourage research into aids and appliances for incontinence and menstruation;
- continue to provide access to special training to improve employment opportunities;
- continue to ensure that women with disabilities have an equal opportunity to participate in Commonwealth public sector employment and training;
- continue to promote occupational health and safety practices to prevent disability in cooperation with State Governments;
- improve access to respite care for women caring for people with disabilities including access to child care services;
- continue to improve access to specific disability services which allow people with disabilities to live free and independent lives; and
- encourage public participation in planning services.
Appendix IV: Education - Legislation and Policies
| Legislation | Policies | |
| NSW |
Education and Public Instruction Act 1987
|
The Department's current policy is one of integrating the student into the mainstream system wherever possible and practicable where it is in the best interests of the child. |
| ACT |
Education Ordinance 1937 ACT Schools Authority Ordinance 1976
|
Departmental policy is to educate all children together as far as practicable, but not to require children with special needs and others to be taught together in circumstances which would educationally disadvantage any of the students. |
| QLD |
Education Act 1964-74
|
The Department supports a policy of integrating children with disabilities in regular schools where it is in the best interests of the student to do so. |
| NT |
Education Act 1979
|
Departmental policy is, if it is at all possible, for a child to receive an appropriate education in a regular classroom. Only when this mainstream experience is demonstrated to be not in the best interests of the child would a less integrated placement be sought. Where such an alternative placement is warranted, a full range of support services should be available. |
| SA |
Education Act 1972
|
Consultations in SA indicated that school principals have their own agenda that differs from that of the Department of Education, and results in some schools not facing the responsibility of integration. |
| WA |
Education Act 1928
|
The Policy of Children in Need of Special Support aims to "enable handicapped children to receive an appropriate education in an integrated setting in regular schools." |
| VIC |
Education Act 1958
|
Principals accept children for enrolment regardless of disability, but then suspend attendance pending allocation of additional resources. |
Bibliography
General
Anderson, Jill 1987, "Federal Voting Rights for People with Disabilities ", Interaction, vol.1 no.3 June, pp.5-8.
Anti-Discrimination Act 1977 No.48 NSW.
Ashby, G.F., Robinson,
Australian Council for Rehabilitation of Disabled, 1978. National Committee on Education of the Handicapped. The charter for the education of children and adults with handicapping disabilities. Surry Hills, NSW.
Australian Housing Research Council 1988.Housing Impact of Deinstitutionalisation Policies. Discussion Paper Workshop, April 1983. Project no.162, Transition Resource no.12 1988. Department of Community Services and Health. Disability Services Program. Canberra.
Australian Institute of Multicultural Affairs 1982. The Disabled Migrant in
Authority for Intellectually Handicapped Persons Act 1985 (No. 68) (WA).
Bradshaw, Susan 1981. Discrimination against Disabled Persons: results of a survey conducted December 1980 - January 1981: Commissioner for Equal Opportunity,Melb.
Department of Community Services 1985, New Directions: report of the handicapped progran review, AGPS,
Department of Community Services and Health 1988, TAFE and people with disabilities: Final report prepared by Jack Sach and Associates: AGPS, Canberra.
Department of Community Services and Health 1987, Consumer views on the CSHA: A report on the views of public tenants and community groups about the implementation of the 1984
Department of Community Services and Health 1988, Census of Disability Services. McNair Anderson, Canberra.
Department of Community Services and Health 1987, Living in a nursing home: outcome standards forAustralian nursing homes, Commonwealth / State Working Party on Nursing Home Standards. AGPS, Canberra.
Department of Community Services and Health 1986, Description of Services in TAFE for people with disabilities in each state of
Department of Community Services and Health 1986, The home and community care programs: Commonwealth priorities for service development. Canberra.
Disability Advisory Council of Australia 1987, Report on the Public Forum for the Housing Needs of people with Disabilities. Brisbane Forum. Canberra.
Disability Services and Guardianship Act 1987 (no.257) (NSW). Disability Services Act 1986 (no.129) (Commonwealth). Doneau, Stan 1984 Edging for Integration: the Australian experience. Edvance Publications, Pennant Hills, NSW.
E.E.O. Bureau 1987. Pride and Prejudice: a C.E P. survey of disabilities in the Australian Public Service / Public Service Board, E.E.O Bureau. AGPS, Canberra.
Equal Employment Opportunity Bureau 1985, Equal Employment Opportunity Program Guideline No.3, Public Service Board, Canberra.
Hall, Lesley 1985, Free from this place: the rights of residents in institutions: report to the Human Rights Commission. Disability Resources Centre. Melbourne, VIC.
Hayes, Susan C., Hayes, Robert 1984, Simply Criminal, Law Book Company, Sydney.
Human Rights and Equal Opportunity Commission Act 1986 (No.125).
Human Rights and Equal Opportunity Commission 1988, Review of Medical Standards and Procedures for Appointment / Employment in the Australian Public Service.(unpublished).
Human Rights Commission 1983, Ethical and Legal Issues in Guardianship Options for Intellectually Disadvantaged People. Discussion Paper No.4, AGPS, Canberra.
Human Rights Commission 1983, Human Right: A handbook, AGPS, Canberra.
Human Rights Commission 1986, The Treatment of Disabled Persons in Social Security and Taxation Law, Occasional Paper No.11.
Intellectually Disabled Persons Services Act 1986 (No.53), (Vic.)
Intellectually Handicapped Citizens Act 1985 (No.11), (Old.)
National Council on Intellectual Disability 1985. Statement of Philosophy and Policy, - Advertising code of Ethics, Canberra
New South Wales Anti-Discrimination Board 1981. Discrimination and intellectual handicap, The Board: Sydney.
New South Wales Anti Discrimination Board 1980. Discrimination and Age, The Board, Sydney.
Office of Disability 1988. Disability, Society and Change: a resource kit explaining the Commonwealth Government statement of principles and objectives, The Office, Sydney.
Racial Discrimination Act 1975 (No.52) (Commonwealth).
Royal Commission on Human Relationships 1977. Final Report, Vol.5. AGPS, Canberra.
Sex Discrimination Act 1984 (No.4) (Commonwealth).
Social Security Review 1988. Towards Enabling Policies: Income Support for People with Disabilities. Issues paper No.5. AGPS, Canberra.
Steinberg, Margaret 1983. Policies, regulations programs and services for Disabled Persons: a survey of government departments and organisations: report to the National Women Advisory Council. National Women's Advisory Council, Canberra.
Tate, D. A Bit of Support Here and There: Housing Experiences of People with Disabilities, Disability Council of New South Wales (undated).
United Nations 1986. Manual on the Equalisation of Opportunities for Disabled Persons.
Working Party on Equal Opportunity Legislation for People with Disabilities (WA), 1986 A Fair Go for People with Disabilities: a Discussion Paper. Department of the Premier and Cabinet, Perth, WA.
Employment
NSW
Anderson, Jill 1988. "The Invalid Pension and Sheltered Employment Allowance,". interaction, vol.2 no.1, February, pp.24-13.
Anderson, Jill 1987. "The Right to be Treated as an Employee: Sheltered Workshops and the Law", Interaction, vol.1, no.4, August, pp22-24.
Simpson, Jim 1987, "Behaviour Management Versus Rights", Interaction, vol.1, no.3, June, pp.9-10.
ACT
Koomarri Association 1988, Koomarri Means Business. (Pamphlet).
Koomarri Association 1988, Personnel Policy and Procedures Manual.
QLD
Endeavour Foundation 1986. Having a Say - Being Effective: Report of Client Conference, held at Bribie Island on June 12,13,14, Brisbane.
Gannon, Dr P.M. 1988. The Rights and Responsibilities of People who are Intellectually Disabled in
ACT
ACROD ACT Division 1988.
ACT Disability Plan: Policy Document.
Family Planning Association ACT 1987, Managing Sexuality and Disability, Report no.1 of Sexuality and Disability Workshop, held at ACROD House,
Family Planning Association ACT 1988, People in Key Positions, Report no.2 of Sexuality and Disability Workshop, held at ACROD House,
Family Planning Association ACT 1988, Direct care givers of people with intellectual disabilities, Report no.3 of Sexuality and Disability Workshop, held at ACROD House, Canberra 17-18 March.
Family Planning Association ACT 1988, Parents of people with disabilities, Report no.4 of Sexuality and Disability workshop, held at ACROD House,
Family Planning Association ACT 1988, Direct care givers of people with physical disabilities, Report no.5 of Sexuality and Disability Workshop, held at ACROD House, Canberra, 25-26 May.
Kleber, Anna 1988, Liaison and Service Co-ordinator for Ethnic Aged and Younger Disabled in the Canberra Are, Community Options Pilot Program, Mid Program Report.
Education
ACT
ACT Schools Authority 1986. Policy for Services to Students with Special Needs, Supplement to the Schools Bulletin No. 272.
QLD
Board of Advanced Education, A Guide for Disabled Students in Queensland's Higher Education Institutions,Toowong, QLD.
Department of Education, Division of Special Education 1986. Policy and Information Statement on Integration, QLD.
Queensland Parents of Disabled 1987. Policy Statement: "Education of children with Special Needs", QLD.
NT
Pryce-Davies, Peter M. 1987, Teaching, Learning and Technology in Special Needs Classrooms: A National Information Statement, Commonwealth Schools Commission, Canberra.
WA
Department of Education, Technical Education Division 1987, TAFE Policy and Strategy for Students with Disabilities,
Farnow, Shelley 1986. TAFE and the need of people with disabilities in
Accommodation
ACT
ACT Intellectual Handicap Services, Philosophy of Care (Pamphlet).
NSW
Coots, J., Simpson, J., and West, R., 1988. Rights in Residence, Intellectual Disability Rights Service.
Department of Health 1985. Guidelines for the Development and Operation of Residences for Persons with a Development Disability. NSW.
QLD
Ecumenical Housing Reference Group 1988.
Human Rights and Equal Opportunity Commission 1988. Report of Workshop on Accommodation for People with Severe Disabilities, July, Qld.
Withers, Greg 1988. Housing: Towards 2000, April, Qld.
NT
Northern Territory Council of Social Service 1988. Home and Community Care in the
Tennant, J.,& Isam, C. 1988 Report on review of
WA
Catholic Care for Intellectually Handicapped Persons 1987. Policy Statement.
Department of Health 1982. The Future Delivery of Services for People with Intellectual Handicap in
Homeswest 1985. Public Housing Policy for Disabled Persons: the key to Better Living. Residential Planning Review Taskforce Report 1987, July.
Working Party on Equal Opportunity Legislation for People with Disabilities / (W.A), 1986. A fair go for people with disabilities: a discussion paper. Department of the Premier and Cabinet, Perth, WA.
Criminal Justice System
QLD
Qld Advocacy Inc, 1988. The Criminal Code, Evidence Act and Other Acts Amendment Bill: a submission.
NSW
Departments of Corrective Services and Youth and Community Services 1985. The Missing Services: Report of the Inter-Departmental Committee on Intellectually Handicapped Offenders in NSW.
Intellectual Disability Rights Service 1986. Legal Rights and Intellectual Disability, Redfern Legal Centre, Sydney. Goods and Services
QLD
Department of Health 1982. Parliamentary White Paper on Services for Intellectually Handicapped People in
NSW
Price, Lory 1987. "Health Insurance and Developmental Disability". Interaction, vol.1, no.4, August, pp.11-13.
NT
Department of Health and Community Services 1987. Review of Rehabilitation Services in the Northern
WA
Gilbertson, Rosemary 1988. SLGC (Inc.) Employee Conference. 24-25 March.
Department of Health, Division for the Intellectually Handicapped 1984. Recommendations of the Work Review Committee, WA.
Stanton, Jo & Scott, Shanagh 1987. SLGC Employee Conference; 19-20 March.
Miscellaneous
NT
Department of Health and Community Services. Adult Assessment and Co-ordination Team, Six monthly report: October 1987 - March 1988, Casuarina, N.T.
Katherine Social Planning Committee 1987, Who speaks for Katherine?. Tangentyere Council Inc. 1988, Land Needs of
WA
Carter, Jan. The Wellbeing of the People: The Final Report of the Welfare and Community Services Review in Western Australia.
Department of Health 1987, Handicapped Children in childcare: guidelines and recommendations on the minimum standards of access and care of handicapped children in community child care services, July.
WA. Department of Youth, Sport and Recreation 1983, Sport and Recreation for Disabled People in WA, Perth.
ACT
ACT Council on Intellectual Disability 1986. Guardianship for People with Intellectual Disability - Seminar Report.
QLD
Disabled Persons Service 1986. Services and Resources for Hearing Impaired People in Queensland.
Hallahan, Lorna & Ward, Jeremy 1988. Empowerment through Advocacy, a paper presented to Advocacy in Queensland Workshop, May.
Hyde, M., Pattison, E. & Sherman, G. 1981. "Survey of the Perceived Needs of Hearing Impaired Adults in QLD", Abstract journal of Audiology, vol 3, No.1, pp.5-10.
NT
Alcohol and Drug Foundation 1986. Proceedings of 8th Conference of the International Federation of Non-Government Organisations for the prevention of drug and substance abuse.
VIC
Law Reform Commission of
WA
Stephens, Mescal. Community Transport: A Policy Perspective, Department of Transport,
Transport Commissioner of
