Disability and Human Rights...4 Disability and Human Rights The intersection of human rights treaties and their relevance for ensuring respect for the fundamental rights of all persons

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Disability and Human Rights Walk the Talk: Realising the National Disability Strategy and

our human rights promises

Table of Contents

Executive summary............................................................................................................................ 3

Introduction ......................................................................................................................................... 4

Background ......................................................................................................................................... 4

Exploring the scope and content of the key conventions.............................................................. 6

The Universal Declaration of Human Rights (UDHR) ............................................................... 6

International Covenant on Civil and Political Rights (ICCPR) (and two Optional Protocols) 7

International Covenant on Economic, Social and Cultural Rights (ICESCR) ......................... 8

Convention on the Rights of Persons with Disabilities (CRPD) ............................................... 8

Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT) 10

Convention on the Rights of the Child (CRC) ........................................................................... 11

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 12

Convention on the Elimination of All Forms of Racial Discrimination (CERD) ..................... 13

Key areas of intersection and relevance for specific human rights concerns in Australia in the

disabilities context ............................................................................................................................ 14

Torture – Restrictive Practices and Involuntary Treatment Orders ....................................... 15

Involuntary treatment orders ....................................................................................................... 19

Indefinite detention ....................................................................................................................... 20

Case study ................................................................................................................................ 24

Access to justice ........................................................................................................................... 24

Education ...................................................................................................................................... 25

Health............................................................................................................................................. 27

Housing and family rights ............................................................................................................ 29

Work ............................................................................................................................................... 34

Case study – Australian Disability Enterprises (‘sheltered workshops’) ........................... 36

Human rights that have been adopted in domestic law .............................................................. 37

Key weaknesses in the human rights framework ........................................................................ 47

The limitation of rights .................................................................................................................... 47

Limited jurisprudence ...................................................................................................................... 48

Difficulties translating rights into practice ...................................................................................... 49

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Areas where the CRPD stands alone ............................................................................................... 50

Measuring impact ........................................................................................................................... 51

Recommendations ........................................................................................................................... 52

1. Comprehensive legislative protection of human rights .................................................... 52

2. The development of human rights indicators .................................................................... 53

3. Implementation of all international conventions in Australian legislation ...................... 53

4. Ensuring successful follow-up of UN recommendations ................................................. 53

5. Ratification of OPCAT .......................................................................................................... 54

Conclusion ........................................................................................................................................ 54

Reference List .................................................................................................................................. 56

Annexure 1 ........................................................................................................................................ 58

Comparative table outlining human rights common to different UN human rights

treaties/conventions ..................................................................................................................... 58

Annexure 2 ........................................................................................................................................ 61

Comparative table outlining Australian legislation implementing certain human rights

established by the UN Conventions........................................................................................... 61

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Executive summary

This research paper considers the intersection of the United Nations’ human rights treaties and conventions and their relevance for ensuring respect for the fundamental rights of all persons with disabilities to participate in an ordinary, inclusive life in Australia.

The UN treaties and conventions that are explored in this paper are as follows:

Convention on the Rights of Persons with Disabilities (CRPD) International Bill of Human Rights, comprised of:

Universal Declaration of Human Rights (UDHR) International Covenant on Civil and Political Rights (ICESCR) International Covenant on Economic, Social and Cultural Rights (ICCPR) (and two

Optional Protocols) Convention on the Rights of the Child (CRC) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Convention on the Elimination of All Forms of Racial Discrimination (CERD) Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT).

We make the following key points in this paper:

1. Common to all of the UN treaties and conventions is recognition of and respect for a core collection of human rights.

2. Many of the human rights proclaimed by a majority of the UN treaties and conventions are essentially the same human rights (such as the right to equality and non-discrimination), although they may be slightly differently expressed. This is so whether it is a general human rights treaty (such as the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights) or a subject-matter specific treaty (such as the Convention on the Rights of Persons with Disabilities or the Convention on the Rights of the Child). This builds a compelling case for the universal acceptance of these rights as core human rights that should be explicitly protected for all people, by enacting them in Australian legislation that is binding at both a state and territory level.

3. The human rights fault line is not at the point of recognition or articulation of human rights, but at the point of translation from the international to the national level of legal regulation. The Australian Government must honour the commitments it has made in signing and ratifying the international treaties by enacting a full set of legislation that comprehensively implements these human rights in Australian law.

This paper looks at some key areas where many people with disability are denied the right to participate in an ordinary, inclusive life and how their experience in these realms sits completely at odds with what their experience should be, having regard to the rights created by the relevant treaties and conventions. The areas which we explore to understand this disconnect between the rights people with disability have on paper and their lived experiences are education, health, housing and work. We also look at the way people with disability are routinely subjected to torture, in the form of Restrictive Practices and Involuntary Treatment, as well as indefinitely detained, in a way that is sanctioned by the Government.

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Disability and Human Rights The intersection of human rights treaties and their relevance for ensuring respect for the fundamental rights of all persons with

disabilities to participate in an ordinary, inclusive life

Introduction

This paper considers the United Nations (UN) conventions that protect the basic human rights of persons with disabilities. In particular, we look at the ways in which the core treaties or conventions intersect in addressing the human rights of persons with disabilities, and how this frames the human rights dialogue. The role of the UN-linked human rights treaty bodies and committees is considered, along with ways to ensure relevant Australian laws1 are compliant with and bolstered by these treaties. This will provide context for an exploration of the progress Australia has made in terms of implementation of the National Disability Strategy (NDS).

The paper will explore the adequacy of this international human rights law framework as the basis for the protection of the fundamental rights of persons with disabilities in Australia to participate in an ordinary, inclusive life and the ways in which improved compliance with this framework and greater protection of human rights can be achieved.

Background

The development of the National Disability Strategy (NDS) represented an exciting opportunity for Australia to foster a fresh national response to people with disability that is consistent with the human rights obligations Australia has assumed by signing and ratifying a suite of international treaties and conventions. The NDS sets out a 10 year national plan aimed at improving life for all people with disability. The NDS was developed following consultation in 2008-9 by the National People with Disabilities and Carer Council. Policy Direction 4 of the NDS states that people with disability are to be safe from violence, exploitation and neglect. Areas identified for future action include developing strategies to reduce violence, abuse and neglect of people and to improve the reach and effectiveness of all complaints mechanisms. Yet we are now past the half-way point in the life of the NDS. The preliminary indicators of progress are not encouraging and suggest there has not been a consistent commitment to faithful implementation of the intent of the NDS. We must therefore consider how our commitments under, and progress against, the NDS measure up to our human rights obligations at an international level.

There are a number of separate human rights-based conventions and treaties that have been signed and ratified by UN member States that provide some protection for the rights of persons with disabilities to participate in an ordinary, inclusive life. The instruments that are most relevant in this regard are:

Convention on the Rights of Persons with Disabilities (CRPD)

International Bill of Human Rights, comprised of: o Universal Declaration of Human Rights (UDHR) o International Covenant on Civil and Political Rights (ICCPR) (and two

Optional Protocols) o International Covenant on Economic, Social and Cultural Rights (ICESCR)

Convention on the Rights of the Child (CRC)

1 Both state and federal, for example, the National Disability Insurance Scheme Act 2013 (Cth), the Disability

Discrimination Act 1992 (Cth), the Disability Services Act 2006 (Qld) and the Anti-Discrimination Act 1991 (Qld).

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Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Convention on the Elimination of All Forms of Racial Discrimination (CERD)

Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT).

The Universal Declaration of Human Rights, which was adopted by the UN General Assembly in December 1948, was for more than a quarter of a century following its creation the sole human rights benchmark for the international community. While the UDHR is not legally enforceable, it set the moral and legal benchmark for human rights protection and provided a basis for the development of a host of international treaties and conventions, as well as national constitutions and human rights laws and charters. The subsequent creation of the ICESCR and the ICCPR and Optional Protocols, for example, provided a means of implementing the legal and moral obligations established by the UDHR, strengthening the UDHR and realising its provisions. As will be discussed, however, the realisation of these rights in Australian law (and in the laws of many other countries that have similarly signed and ratified these international agreements) remains limited – the international legal system does not have a means of compelling member states to implement or honour the treaties they sign and ratify, and this significantly weakens the practical power of international humanitarian law.

The UDHR, as a universal declaration, is just that – it makes declaratory statements about the existence and importance of human rights for all human beings, irrespective of where they reside and whether or not their country has formally accepted the principles of the UDHR. As such, it articulates fundamental human rights principles to which all countries should aspire without creating any binding contractual obligations. The scope of the UN human rights Covenants is not quite as universal as the UDHR – they exist in the form of multilateral conventions and are therefore only legally binding on those countries that have formally accepted them, by ratification2 or accession.3 So whilst the UDHR is broader and more aspirational, the UN conventions and treaties seek to express fundamental human rights which countries can and should commit to in a way that can be practically realised.

The Convention on the Rights of Persons with Disabilities is the most comprehensive of the UN conventions insofar as the human rights of persons with disabilities to live an ordinary and inclusive life are concerned. The CRPD specifically focusses on the human rights of persons with disabilities and addresses and protects core rights in two key ways:

demanding protection from the most flagrant types of rights abuses (this includes freedom from discrimination, torture and cruel, inhuman or degrading treatment or punishment, exploitation, violence and abuse); and

establishing positive rights (including the right to privacy, freedom of movement, access to justice and to inclusive health, housing, education and employment).4

The other conventions listed above touch on many of these same rights, sometimes from the perspective of a particular, vulnerable group such as children (Convention on the Rights of the Child) or ethnic minorities (Convention on the Elimination of All Forms of Racial Discrimination) and sometimes in the form of blanket protection for certain types of rights (Convention Against Torture).

2 Formal validation of a proposed law, usually achieved by vote.

3 The absolute or conditional acceptance by one or several states, of a treaty already concluded between one or

several states, of a treaty already concluded between other sovereignties. 4 Note that the word ‘inclusive’ is stipulated in the CRPD to address the historic and traditional exclusion

experienced by people with disability over the centuries and in more western societies: L. Chenoweth. ‘A brief history of Institutions: Some fundamental assumptions’. Presentation given at Queensland Advocacy Incorporated’s Renaissance: Now or ?? Forum. August 2014.

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Other international regulatory mechanisms are the international bodies established to monitor compliance with the treaties and conventions and assess the human rights performance of members States, such as Australia. The UN Human Rights Council and the Office of the High Commissioner for Human Rights were established to oversee the protection of human rights. They can issue recommendations regarding human rights, such as during a Universal Periodic Review. There are eight UN-linked human rights treaty bodies, to which member States must submit regular reports on the implementation of rights under the Convention and which in turn make recommendations in the form of ‘concluding observations’. It is also the function of officers such as UN Special Rapporteurs to investigate, monitor and recommend solutions to specific human rights problems.

Yet while specific penalties and sentences are imposed by countries and states for breach of their domestic laws, there is no robust equivalent at an international level. The conventions and the recommendations made by UN bodies are recommendatory only, rather than legally binding with a penalty imposed for breach and the system essentially relies upon countries wanting to respect human rights and to establish a positive reputation in this regard within the international community. At least in the Australian experience, this is not always a sufficiently compelling motive to respect human rights to which we have committed, particularly where there is a perceived economic or political cost to do so. Sadly, in Australia in recent years we have increasingly distanced ourselves from our previous leadership and reputable reputation in the human rights arena. This now leaves Australia open to judgement and lack of credibility when casting aspersions on the human rights breaches of other countries.

In light of the non-binding nature of both the UN Conventions and the recommendations made by UN committees reviewing members States’ compliance with the conventions, NGOs and other organisations and individuals that advocate to protect and defend human rights within their respective countries play an important role in working to implement the UN conventions and recommendations.

NGOs can hold the government to account and can effectively campaign for law and policy reform to improve the lives of vulnerable people within society. An example of the type of reform that NGOs may effectively campaign for is the introduction of a state or federal Human Rights Act or Charter in Australia. Yet there are limits to the power of NGOs to compel respect for international humanitarian obligations. This issue is therefore critical at the interface between theoretical acceptance of human rights obligations and translation of these rights into practice and is an issue that will be explored further in this paper.

Before doing so, however, we will begin by exploring the scope of the core human rights treaties and their relevance for ensuring respect for the fundamental rights of all persons with disabilities to participate in an ordinary, inclusive life.

Exploring the scope and content of the key conventions

The Universal Declaration of Human Rights (UDHR)

The development and adoption of the UDHR was and remains a key milestone in international humanitarian law. The statement in proclaiming the UDHR by the General Assembly that it would operate as a ‘common standard of achievement for all peoples and all nations’ is apt – the UDHR is regarded as a yardstick by which respect accorded to, and compliance with, international human rights standards by the international community is measured.

The core philosophy of the UDHR is articulated in Article 1: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’.

Article 2 is often described as the ‘first cornerstone of the Declaration’, as it prescribes the basic right to equality and non-discrimination in enjoying fundamental human rights and

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freedoms, across a broad spectrum including race, colour, sex, language, religion, political opinion, national or social origin, property, birth or other status. Article 3 declares the right to life, liberty and security of person, which is the basis for many other fundamental human rights prescribed in the UDHR. Articles 4 to 21 prescribe protection for fundamental civil and political rights.

Article 22, the ‘second cornerstone of the Declaration’, proclaims the right of every person to enjoyment of economic, social and cultural rights, tempering this with recognition that the realisation of these rights is dependent not only on national effort and international co-operation, but on the resources of the relevant State. Articles 22 to 27 recognise a range of economic, social and cultural rights.

The UDHR concludes, in Articles 28 – 30, by acknowledging the entitlement of all people to a social and international order in which the human rights and fundamental freedoms recognised in the UDHR may be fully realised and emphasising the duties and responsibilities of each individual to this end.

International Covenant on Civil and Political Rights (ICCPR) (and two Optional Protocols)

The ICCPR, like the ICESCR (discussed below), commences by proclaiming the universal right to self-determination and to equal enjoyment of all human rights, and prescribes safeguards to protect against the destruction or undue limitation of any human rights or fundamental freedoms.

The ICCPR then proceeds to proclaim core civil and political rights, including:

core civil rights: o the right to life (Article 6); o the right not to be subjected to torture, or to cruel, inhuman or degrading

treatment or punishment (Article 7); o freedom from enslavement, servitude and forced or compulsory labour

(Article 8); o the right to liberty and security of person, and the right to be treated with

humanity when deprived of liberty (Articles 9 and 10); o the right not to be imprisoned for failure to fulfil a contractual obligation

(Article 11); o freedom of movement and residence (Articles 12 and 13); o equality and equal recognition before the law (Articles 14 and 16) and

protection from retrospective criminal legislation (Article 15); o the right to privacy (Article 17).

core political rights: o freedom of thought, conscience and religion (Article 18); o freedom of opinion and expression (Article 19); o prohibition of war propaganda or incitement of violence (Article 20); o the right to peaceful assembly and freedom of association (Articles 21 and

22); o marriage and family rights (Article 23); o the rights of children (Article 24); o suffrage rights (Article 25); o the right to be treated without discrimination (Article 26); o protection of the cultural rights of ethnic, religious and linguistic minorities

(Article 27).

The First Optional Protocol to the ICCPR establishes an individual complaints process, where individuals alleging a violation of a right(s) proclaimed by the ICCPR can lodge a complaint with a Human Rights Committee, established under this Protocol (all domestic

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avenues must first have been exhausted before a complaint will be accepted). The Second Optional Protocol to the ICCPR was aimed at abolishing the death penalty.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR recognises core economic, social and cultural rights, including:

labour rights: o the right to work in freely chosen or accepted work (Article 6); o the enjoyment of just and favourable conditions of work (decent work) (Article

7); o the right to form or join unions and the right to strike (Article 8);

social security and welfare rights: o the right to social security, including social insurance (Article 9);

family rights: o the right to the widest possible protection and assistance for the family –

especially mothers, children and young persons (Article 10); adequate standard of living rights:

o including the right to adequate food, clothing and housing and the ‘continuous improvement of living conditions’ (Article 11);

health rights: o the right to enjoyment of ‘the highest attainable standard of physical and

mental health’ (Article 12); educational rights:

o including the right to free universal primary education, generally available secondary education and equally accessible higher education, directed to the ‘full development of the human personality and the sense of its dignity’ and to enable all persons to participate effectively in society (Articles 13 and 14);

cultural rights: o the right to participate in cultural life and to cultural freedoms (Article 15).

Unlike the other UN Human Rights Treaties, the ICESCR did not establish a Committee to oversee and monitor its implementation; the Committee on Economic, Social and Cultural Rights was established by the United Nations Economic and Social Council (ECOSOC).

Convention on the Rights of Persons with Disabilities (CRPD)

Insofar as the rights of persons with disability to live an ordinary, full life in the community are concerned, the CRPD is the most comprehensive and specific of the international human rights treaties. The development of the CRPD was the culmination of five years of negotiation between state parties and NGOs. The CRPD is more detailed and prescriptive in its articulation of the steps to be taken to ensure equality of treatment and to prohibit discrimination than the human rights treaties that preceded it.

The CRPD was signed by Australia on 30 March 2007 and ratified on 17 July 2008.

The CRPD is built upon eight fundamental principles:

1. Respect for inherent dignity and individual autonomy, including the freedom to make one's own choices, and independence of persons

2. Non-discrimination 3. Full and effective participation and inclusion in society 4. Respect for difference and acceptance of persons with disabilities as part of human

diversity and humanity 5. Equality of opportunity 6. Accessibility 7. Equality between men and women

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8. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

The CRPD has brought national and international attention to the need to address the multiple inequalities that people with disabilities face. The CRPD embraces a social, rather than medicalised, model of disability and as such has introduced a new paradigm into international disability law.5 The CRPD also embraces a supported, rather than substituted decision-making approach, also a paradigmatic shift.6 The CRPD is providing leadership in this area, as the supported decision-making approach is still in its infancy in terms of recognition and adoption in Australia.

Article 1 defines the purpose of the CRPD as being ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’. This purpose, which forms the focus of the CRPD, addresses the core needs of all people with disability if they are to live a full and ordinary life in the community.

The CRPD proclaims the following human rights for persons with disabilities, some of which mirror rights in other UN conventions, such as the ICCPR and the ICESCR, but with a specific focus on the realisation of these rights by people with disability:

the right of all people to equality and non-discriminatory treatment (Article 5), with this right specifically extended to women and girls with disability (Article 6) and to children with disability (Article 7);

the right of access – to accessibility of the physical environment, transport, information, communication, technology, services and systems (Article 9);

the right to life (Article 10); the right to protection and safety in situations of risk and humanitarian emergencies

(Article 11); the right to equal recognition before the law (Article 12); the right to equal, effective access to justice (Article 13); the right to life and security of the person, and to treatment in accordance with the

principles of international humanitarian law when deprived of liberty (Article 14); freedom from torture or cruel, inhuman or degrading treatment or punishment (Article

15); freedom from violence, exploitation and abuse (Article 16); the right to respect for physical and mental integrity on an equal basis with others

(Article 17); the right to liberty of movement and nationality (Article 18); the right to live independently and be included in the community, including choice

with respect to place of residence and where and with whom to live, on an equal basis with others, and the rights not to be obliged to live in a particular living arrangement and to have access to appropriate support (Article 19);

the right to personal mobility with the greatest possible independence (Article 20); freedom of expression and opinion and access to information (Article 21); the right to privacy (Article 22); rights pertaining to respect for home and family, including the right to make choices

with respect to marriage, child-bearing and fertility (Article 23); the right to education without discrimination and with equal opportunity, including the

right to inclusive education (Article 24); the right to the enjoyment of the highest attainable standard of health without

discrimination (Article 25); the right to habilitation and rehabilitation (Article 26);

5 P Bartlett. ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’

(2012) 75(5) Modern Law Review 752. 6 See Article 12.

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the right to work and employment, on an equal basis and without discrimination (Article 27);

the right to an adequate standard of living and to social protection (Article 28); the right to participate in political and public life (Article 29); the right to participate in cultural life, recreation, leisure and sport (Article 30).

In addition, parties to the Convention must raise awareness of the human rights of persons with disabilities and combat adverse stereotyping (Article 8).

Articles 31–40 govern reporting, monitoring and implementation of the CRPD by the States parties, including by national human rights institutions (Article 33), by the Committee on the Rights of Persons with Disabilities (Article 34) and by the Conference of State Parties (Article 40).

As with the other human rights treaties, certain parties have made reservations and interpretative declarations as regards the application of the CRPD in their country. In Australia, this has been in the form of a declaration that Australia does not consider itself bound to stop forcibly medicating people who are deemed to have a mental illness, provided the involuntary medication is a ‘last resort’.7

The Optional Protocol to the CRPD is a side-agreement which allows its parties to recognise the competence of the Committee on the Rights of Persons with Disabilities to consider complaints from individuals. The text is based heavily on the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Under the Optional Protocol, individuals are able to bring petitions to the Committee claiming breaches of their human rights, and the Committee is empowered to undertake inquiries of grave or systematic violations of CRPD rights. The Optional Protocol entered into force with the CRPD on 3 May 2008.

The Committee on the Rights of Persons with Disabilities is a body of human rights experts tasked with monitoring the implementation of the CRPD. It initially consisted of 12 independent human rights experts, with half elected for a two-year term and half elected for four-years. Thereafter members are elected for four-year terms, with half the members elected every two years. As the Convention has achieved 80 ratifications, the Committee will be expanded to 18 members.

Along with the Committee, the Conference of State Parties (COSP) is the other implementation mechanism established by the CRPD, which considers matters pertaining to implementation of the CRPD.

Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT)

The CAT is an international human rights treaty which aims to prevent torture and other acts of cruel, inhuman or degrading treatment or punishment around the world.

The CAT:

prohibits any act of torture8 (Article 2); ensures state parties to the CAT take effective measures to prevent torture, by:

o barring the deportation or extradition of people where there are substantial grounds for believing they will be tortured (Article 3);

o making torture a criminal offence (Article 4); o having jurisdiction over torture and establishing universal jurisdiction to try

cases of torture where necessary (Article 5); o ensuring torture is an extraditable offence (Article 8);

7 See: ˂treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en˃).

8 Defined by Article 1 of the CAT.

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o training and educating relevant people and officials regarding the prohibition of torture (Article 10);

o keeping interrogation rules, instructions, methods and practices under systematic review regarding individuals who are in custody or physical control in any territory, in order to prevent torture (Article 11);

o promptly investigating allegations of torture (Articles 12, 13); o providing victims of torture with an enforceable right of compensation (Article

14); o preventing all acts of cruel, inhuman or degrading treatment or punishment in

any territory under their jurisdiction (Article 16).

The ban on both torture (proclaimed in Article 2 of the CAT) and on other acts of cruel, inhuman or degrading treatment or punishment are both absolute and non-derogable – there are ‘no exceptional circumstances whatsoever’ that are deemed to justify limiting or over-riding this prohibition.

This is very relevant in the context of the use of Restrictive Practices on vulnerable persons with disability in Australia. Notwithstanding our status as signatories to the CAT, the Australian Government continues to sanction the use of Restrictive Practices in circumstances where the international community has issued an absolute ban on torture, cruel, inhuman or degrading treatment or punishment, and Australia has agreed to uphold this. This will be discussed in detail, below.

The entry into force of the CAT on 26 June 1987 has led to the absolute prohibition against torture, cruel, inhuman or degrading treatment or punishment becoming accepted as a principle of customary international law.

The Optional Protocol to the CAT was adopted by the UN General Assembly on 18 December 2002 and came into force on 22 June 2006. To date, Australia has failed to sign and ratify this Optional Protocol, which would give practical effect to the obligations to which we have agreed to by signing and ratifying the CAT.

The CAT establishes the Committee Against Torture and empowers the Committee to investigate allegations of systematic torture (Article 20) and to hear individual complaints alleging violation of the CAT (Article 22). The Committee is comprised of human rights experts, who conduct a four-yearly report of compliance with the CAT by states parties. The Committee issues recommendations, which are non-binding on the relevant country, although the Committee meets twice each year to review compliance. In November 2014, QAI was part of the Australian NGO delegation to Geneva to bring the issue of Restrictive Practices and Involuntary Treatment before the Committee.

Convention on the Rights of the Child (CRC)

The CRC recognises the importance and uniqueness of childhood and asserts the best interests of the child as the core concern upon which the protections are based. The CRC recognises the following rights:

the right to life, survival and development (Article 6); the right to an identity and to know and be cared for by his/her parents, and only

separated where it is found that separation is in the best interests of the child (Articles 7, 8, 9);

protection against abduction (Article 11); freedom of thought, expression, conscience and religion, and to have his/her views

count (Article 12, 13 & 14); freedom of association and peaceful assembly (Article 15); privacy (Article 16); access to information and material that will promote social, spiritual and moral well-

being and physical and mental health (Article 17);

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equal responsibility of the parents for the child’s upbringing and development (Article 18);

protection from all forms of physical or mental violence, injury, abuse, neglect or negligent treatment, maltreatment or exploitation (Article 19);

appropriate care and protection of children in non-parental care (Articles 20, 21); protection of refugees (Article 22); the right of a child with disability to a full and decent life, in conditions which ensure

dignity, promote self-reliance and facilitate the child’s active participation in the community, including appropriate care, encouragement and assistance (Article 23);

the right to health and appropriate treatment (Articles 24, 25); the right to social security (Article 26); the right to an adequate standard of living (Article 27); the right to education (Articles 28, 29); cultural rights (Article 30); the right to rest, play and leisure and to engage in cultural life and the arts (Article

31); protection from economic exploitation and hazardous work (Article 32); protection from illicit drug use (Article 33); protection from sexual exploitation, abuse and trafficking (Articles 34, 35, 36); protection from torture and cruel, inhuman or degrading treatment or punishment,

and the right to appropriate rehabilitation and recovery where a child has experienced ill-treatment (Articles 37, 39);

rights in legal proceedings (Article 40).

The CRC also establishes, in Part II, the Committee on the Rights of the Child.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

The CEDAW is an international UN Convention that was pivotal in bringing international attention to the inequality experienced by women throughout the world and declaring the right of women to equality. The CEDAW sets out what is meant by equality and how it can be achieved – it is both an international bill of rights for women and a blueprint for action by countries to challenge enduring gender inequality.

The CEDAW proclaims the following human rights:

the right to freedom from sex role stereotyping and prejudice (Article 5); prohibition on all forms of trafficking in women and exploitation or prostitution of

women (Article 6); the right to participate equally in political and public life (Article 7), including the right

to act in a representative capacity in government and within international organisations (Article 8);

equality with respect to acquiring, changing or retaining their nationality (Article 9); the right to freedom from discrimination and stereotyping and to equality of

opportunity in education (Article 10); the right to equality of opportunity in employment and freedom from discrimination on

the grounds of marriage or maternity (Article 11); the right to equal and non-discriminatory provision of appropriate healthcare (Article

12); the right to freedom from discrimination in economic and social life (Article 13); the right to freedom from discrimination for women in rural areas (Article 14); the right to equality before the law (Article 15); the right to choice and equality with respect to marriage and family relationships

(Article 16).

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The implementation of the CEDAW by States parties is monitored by the Committee on the Elimination of Discrimination against Women (the mandate of which, along with administrative matters pertaining to the CEDAW, is prescribed by Articles 17 to 30 of the CEDAW). The Committee is comprised of 23 experts nominated by their Governments and elected by the States parties as individuals ‘of high moral standing and competence in the field covered by the Convention’.

States parties are obliged, on at least a four-yearly basis, to submit a national report to the Committee detailing the measures they have adopted to give effect to the provisions of the Convention. During its annual session, the Committee members discuss these reports with the Government representatives and explore with them areas for further action by the specific country. The Committee also makes general recommendations to the States parties on matters concerning the elimination of discrimination against women.

Convention on the Elimination of All Forms of Racial Discrimination (CERD)

The CERD is directed towards eliminating racial discriminating and increasing understanding among all races. In particular, the CERD condemns racial segregation and apartheid and obliges States parties to undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.

Part 1 of the CERD seeks to achieve this by obliging parties to not discriminate on the basis of race, not sponsor or defend racism and to prohibit racial discrimination within their country, and to review their laws and policies to ensure they are consistent with these obligations. The CERD also obliges parties to eradicate racial segregation and apartheid and to promote understanding and tolerance and condemns racial supremacism propaganda.

The CERD proclaims the human rights of all people, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights (Article 5):

the right to equal treatment before the tribunals and all other organs administering justice;

the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

other civil rights, in particular: o the right to freedom of movement and residence within the border of the

State; o the right to leave any country, including one's own, and to return to one's

country; o the right to nationality; o the right to marriage and choice of spouse; o the right to own property alone as well as in association with others; o the right to inherit; o the right to freedom of thought, conscience and religion; o the right to freedom of opinion and expression; o the right to freedom of peaceful assembly and association;

economic, social and cultural rights, in particular:

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o the rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

o the right to form and join trade unions; o the right to housing; o the right to public health, medical care, social security and social services; o the right to education and training; o the right to equal participation in cultural activities;

the right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.

The CERD is monitored by the Committee on the Elimination of Racial Discrimination and includes an individual complaints mechanism.

Key areas of intersection and relevance for specific human rights concerns in Australia in the disabilities context

The cross-over between the subject matter of the various international human rights treaties and the focus on people with disability can mean that a particular human rights violation can simultaneously give rise to a rights breach under several different UN conventions and could also be the subject of recommendations by several different UN committees, councils or Special Rapporteurs.

Some of the more general human rights that may be of relevance for persons with disability are protected by all or most of the core human rights treaties. For example:

the right to equality and non-discriminatory treatment is proclaimed by Article 5 of the CRPD, Article 2.2 and 3 of the ICESCR, Article 2 of the CRC, Article 2 of the CEDAW and Article 5 of the CERD;

the right to participate in political and public life is protected by Article 25 of the ICCPR, Article 1.1 of the ICESCR, Article 7 of the CRC, Articles 7 and 8 of the CEDAW and Article 5(c) of the CERD;

liberty and security of the person is proclaimed in Article 14 of the CRPD, Articles 9 and 10 of the ICCPR, Article 5.1 of the ICESCR, Articles 16.1 and 9 of the CRC and Article 5(b) of the CERD;

freedom from torture and cruel, inhuman or degrading treatment or punishment is proclaimed in Article 15 of the CRPD, Articles 7 and 10 of the ICCPR, Articles 2.2, 9, 37 and 39 of the CRC and Article 16 of the CAT;

freedom from exploitation, violence and abuse is proclaimed in Article 16 of the CRPD, Articles 9, 32, 36, 37 and 39 of the CRC, Article 6 of the CEDAW and Article 2.1 of the CAT;

respect for the home and the family is proclaimed in Article 23 of the CRPD, Article 23 of the ICCPR, Article 10.1 of the ICESCR, Articles 5, 8 and 21 of the CRC, and Articles 13.1 and 16 of the CEDAW;

the right to education is proclaimed in Article 24 of the CRPD, Articles 13 and 14 of the ICESCR, Articles 28 and 29 of the CRC, Article 10 of the CEDAW and Article 5(e)(v) of the CERD;

the right to health is proclaimed in Article 25 of the CRPD, Articles 11.2 and 12 of

the ICESCR, Articles 3, 17, 24 and 25 of the CRC, Article 12 of the CEDAW and Article 5(e)(iv) of the CERD;

the right to work and employment is proclaimed in Article 27 of the CRPD, Articles 6.1 and 7 of the ICESCR, Article 11 of the CEDAW and Article 5(e)(i) of the CERD;

the right to an adequate standard of living and to social protection is proclaimed in Article 28 of the CRPD, Article 1.1 of the ICESCR and Article 27 of the CRC;

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the right to participate in political and public life is proclaimed in Article 29 of the CRPD, Article 25 of the ICCPR, Article 1.1 of the ICESCR, Article 7 of the CRC, Articles 7 and 8 of the CEDAW and Article 5(c) of the CERD;

the right to participate in cultural life, recreation, leisure and sport is proclaimed in Article 30 of the CRPD, Article 27 of the ICCPR, Article 15.1(a) of the ICESCR, Articles 17, 18.3, 30 and 31 of the CRC, Article 13.3 of the CEDAW and Article 5(e)(vi) of the CERD.

A full list of the cross-over of the same fundamental human rights (sometimes differently expressed) by the different UN human rights conventions and treaties is provided in Annexure 1.

The mutual recognition of these core human rights across a diversity of important human rights instruments demonstrates the fundamental importance of these human rights, as recognised by a large sector of the international community (including Australia). This provides a compelling argument for the formal adoption of these core human rights in Australian law, in a way that is binding on all actors at both a state and federal level.

Discussion points:

Do you agree that mutual recognition amounts to more enforceable recognition? Do you think that the different articulation of certain human rights strengthens these

rights in a way that has practical implications for people with disability? Is the dispersion of human rights across different treaties the most effective model, or

would a single, all-encompassing human rights treaty be more effective?

To illustrate the pressing need for Australia to take this step, we will now explore some areas where the human rights of people with disabilities are commonly abused. Each case analysis will start by understanding the relevant right and how it is articulated and protected in international humanitarian law, will then examine the way the right has been addressed by the Australian Parliament in its law making capacity, and conclude by considering the practical experience persons with disabilities have had in this area and whether the reality is consistent with the rhetoric.

Torture – Restrictive Practices and Involuntary Treatment Orders

Restrictive Practices are practices used by funded disability service providers to respond to the behaviour of a person with an intellectual or cognitive disability that causes harm to the adult or others. Restrictive Practices include mechanical, physical and chemical restraint, seclusion, containment and restricting access to objects.

Containment is the practice of physically preventing an adult from freely exiting the premises where they receive disability services (other than by seclusion), for example by locking doors or gates.9

Seclusion is the practice of physically confining a person alone, at any time of the day or night, in an area or room from which they cannot exit freely.10 That is, the door is unlockable from the outside only.

Chemical restraint is using medication on an adult for the primary purpose of controlling behaviour that may cause harm to themselves or others.11 Examples are chemical castration for the purpose of inhibiting libido to prevent sexualised behaviours or using diazepam to sedate an adult when there is no medical reason for using the medication.12

9 Disability Services Act 2006 (Qld), s 146.

10 Ibid s 144 (definition of ‘seclude’).

11 Ibid s 145.

12 Medication given to enable an adult to receive a single instance of healthcare, such as a dental check-up, is

not considered a chemical restraint.

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A mechanical restraint involves using a device for the primary purpose of controlling an adult’s behaviour that causes harm to themselves or others.13

A physical restraint involves using any part of another person’s body to restrict an adult’s free movement for the primary purposes of controlling their behaviour to prevent harm to themselves of others.14

Restricting access means restricting an adult’s access to an object to prevent the adult using the object to cause harm to themselves or others.15

The application of Restrictive Practices on persons with disability can constitute a breach of the following:

Articles 14 (Liberty and security of the person), 15 (Freedom from torture and cruel, inhuman or degrading treatment or punishment), 17 (Protecting the integrity of the person), 22 (Respect for privacy) and 26 (Habilitation and rehabilitation) of the Convention on the Rights of Persons with Disabilities;

Articles 7 and 10 of the International Covenant on Civil and Political Rights;

Article 16 of the Convention Against Torture (Articles 12 and 13 of the CAT are also enlivened where complaints on the illegal use of RPs are not dealt with by DSQ);

If the person is a child – Articles 2.2, 9, 37 and 39 of the Convention on the Rights of the Child.

It is increasingly becoming recognised that Restrictive Practices constitute torture or cruel, inhuman or degrading treatment or punishment in contravention of Australia’s obligations under international humanitarian law, both by the international watchdogs and within Australia. The Special Rapporteur on Torture, Juan Mendez, has concluded that seclusion (solitary confinement) of a person with disability is cruel, inhuman or degrading treatment and that – if applied for prolonged periods – it constitutes torture.

Similarly, the Committee on the Rights of Persons with Disabilities has expressed concern that in Australia, persons with disabilities, particularly those with intellectual impairment or psychological disability, are being subjected to unregulated Restrictive Practices such as chemical, mechanical and physical restraint and seclusion. These practices are in contravention of Article 15 of the CRPD, which proclaims the right of all persons to freedom from torture and cruel, inhuman or degrading treatment or punishment. The Committee recommended that Australia take immediate steps to ensure that such practices cease, including by establishing an independent national preventative mechanism to monitor places of detention including mental health facilities, to ensure that persons with disabilities are not subjected to intrusive medical interventions. In the meantime, however, people with disability are subjected to practices including ECT and the administration of anti-libidinal medication, despite that the long-term health side effects of this treatment are well documented and understood. That these practices continue, protected from any form of proper or appropriate scrutiny, is strongly linked to Australia’s continuing failure to ratify OPCAT, which is discussed further below.

In their report to the Committee on the Rights of Persons with Disabilities, under Article 35 of the CRPD, the Australian government highlighted a number of safeguards contained in Australian legislation that it says prevents abuse and exploitation of people with disability.

We will now consider the legislative situation in Queensland in light of this claim. The Guardian and Administration Act 2000 (Qld) requires that all guardianship orders are time-limited, reviewable on request and reviewable at the end of the order. The maximum time for statutorily mandated reviews ranges between one and five years. The introduction of the Disability Services and Other Legislation Amendment Act 2008 (Qld), which amended the Disability Services Act 2006 (Qld), and the Guardianship and Administration Act 2000 (Qld)

13

Ibid s 147. 14

Ibid s 147. 15

Ibid s 144 (definition of ‘restricting access’).

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purportedly raised the bar as regards the theoretical protection offered to those with a disability by providing greater regulation of the use of RPs for persons who exhibit behaviours of concern.

There have been two legislative changes to the use of RP’s since the original legislation was drafted. The first extended the period for a short term approval – doubling its duration to six months. Most people would find the imposition of any restriction upon their person or life to be unendurable for one day and therefore the extension of this period from three to six months is of significant concern. The other relevant amendment extends the immunity accorded to service providers, which is also of paramount concern, as discussed below.

The stated purpose of the most recent legislative amendment was to protect persons with an intellectual or cognitive impairment who are subject to the Disability Services Act 2006 (Qld) by virtue of being a recipient of support services funded pursuant to the Act, by regulating the use of RPs on these adults by their Service Providers. However, the practical experience has been that this legislative framework has sanctioned the largely unfettered application of Restrictive Practices, providing immunity to service providers for actions that, but for the Restrictive Practices legislation, would be considered false imprisonment or assault in contravention of the criminal laws.

Part 6 of the Disability Services Act 2006 (Qld), as amended, sets out the principles relevant to the use of Restrictive Practices on adults with impaired capacity. The legislation explicitly has as a core objective the reduction or elimination of the need for the use of RPs, as well as ensuring transparency and accountability in the use of RPs. However, this has not been the experience of those living under Restrictive Practices.

Underpinning Part 6 (and the entire Disability Services Act 2006 (Qld)) is the principle that people with a disability have the same human rights as others, and specific reference is made to this requirement in implementing any RPs.16 However, as noted by commentators such as French, the drafting of the legislation insofar as human rights principles are concerned is declaratory only – there are no operative provisions that translate this broad statement into practice, nor are any of the other human rights contained in the CRPD, or more generally in international law, recognised or incorporated.17

The stated objective of the Queensland legislative regime is to regulate the use of RPs and only sanction their application as a last resort and in the least restrictive manner, thus reducing and eliminating the use of RPs. Yet ‘regulating’ the use of RPs does little to reduce the use of RP and in reality only records the numbers and types of uses. As French points out, the legislation fails to prescribe any substantive safeguards against the use of RPs, leaving only procedural safeguards, which are akin to no tangible safeguards at all in this context.18 French states:19

In my view, at the very least, the legislation ought to have prohibited any conduct or practice that causes pain or discomfort, or that intimidates or humiliates a person, or which is utilised to seclude a person, to physically restrain a person, or to punish a person in relation to their behaviour.

The new amendments also provide time-limited immunity from criminal and civil liability for services providers implementing Restrictive Practices, provided they acted honestly and without negligence, where there are delays in deciding an approval or consent.20 This is a broad protection that essentially authorises actions that would otherwise amount to a contravention of the criminal law (for example, false imprisonment, assault). Prior to the

16

Sections 17 and 18 of the Disability Services Act 2006 (Qld) promote and prescribes the human rights

principle. 17

French, note 18, 9. 18

Ibid 12. 19

Ibid 12. 20

See s 189 Disability Services Act 2006 (Qld).

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introduction of the immunity provision, service providers were adequately protected by the common law doctrine of necessity and by workplace health and safety legislation.

QAI asserts that the amendments that extended the duration of a short term approval and extended immunity provisions to service providers have not only weakened the intended protections to vulnerable people with disability but have sanctioned the violation of human rights and exerted unreasonable domination, ownership and control over such people.

While the legislative amendments that came into effect on 1 July 2014 offer little promise of substantive improvement in this area, the requirement that disability service providers report to the Department on the use of Restrictive Practices is encouraging, as there has previously been a lack of accountability with respect to the use of RPs. The requirement that information on the use of RPs be provided to the Chief Executive extends the accountability of service providers beyond the pre-amendment threshold of simply requiring that records of the use of RPs be kept.21 The prioritisation of the amendments pertaining to safeguards for people with disability who are subject to Restrictive Practices is a telling factor. There appears to be no impetus driving the development of strategies to ensure that the application of RPs is avoided, nor is there any mention of the implementation of monitoring or other conditions by which service providers can be held accountable for applying RPs.

Other jurisdictions do not have such tight constraints on people with disability as Queensland. More people in Queensland are subject to guardianship orders, and the Restrictive Practices legislation that is intended to protect people from abuse has become a ‘how to guide’ for service providers. Recently the department has required that people with disability who wish to self-manage their funded supports undertake criminal history checks. This is not only incongruent with the notion of ‘choice, control and autonomy’ but sets the premise that people with disability are not capable or are not trustworthy.

The use of RPs is a fundamental infringement on the human rights of a person, and therefore it is critical that there are strong safeguards put in place to ensure any decisions taken with respect to the application of RPs are transparent and open to independent scrutiny and advocacy, as well as being reviewable by an independent body.

The Australian Government’s Department of Social Services has recently developed the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector. This Framework is theoretically designed to reduce the use of Restrictive Practices in disability services as an interim step in the transition to the regulation of RPs under the NDIS. While the introduction of the Framework, and a unified national approach to minimising the use of Restrictive Practices, is laudable, the Department has not yet conveyed any news of the reduction or elimination of Restrictive Practices. The translation of Framework policy into practice remains to be seen. The release of the Framework has not been accompanied by decisive practical measures, rigorous safeguards or enforceable fetters on the powers of service providers to apply Restrictive Practices to those in their care. As such, without further development, its practical impact is questionable. Further, the fact that there is a National Framework aimed at regulating, rather than eliminating, the use of torture on vulnerable members of society is an indication that the government does not currently conceive of human rights for people with disability. Legislative protection of human rights is required.

The limits of the protections afforded to vulnerable persons with disability in terms of the application of Restrictive Practices are brought into sharp focus by the following examples:

21

Section 123ZZE of the Disability Services Act 2006 (Qld).

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Frances, a 22 year old female

Frances was living in the community, however due to inadequate funding and inappropriate supports Frances’ needs were unmet. As a result she started to display behaviours which were seen by the service provider as challenging, so much so that they withdrew from providing support. A decision was made by Disability Services to place Frances in a secure facility, contrary to the appointed guardian’s requests. This meant that Frances was contained 24 hours per day, seven days a week.

Subsequent to the move all activities that Frances had previously enjoyed were ceased, as was her personal mobility and freedom. Due to boredom and an inability to move around freely, Frances began to self-harm and strike out at staff. Additional Restrictive Practices such as seclusion and chemical restraint were applied yet, unfortunately, positive strategies were not as rigorously applied. Frances began to spend large amounts of time in seclusion.

It was 18 months before activities pleasurable to Frances were re-introduced into her daily routine. This was only achieved through the strong advocacy of her family and QAI’s involvement. Some 12 months later Frances remains at this facility and continues to have Restrictive Practices applied, albeit the frequency of use is decreasing.

The question to be pondered is: would any of this have occurred if appropriate funding and supports were available to Frances in the first instance?

Michael, a 50 year old male

Michael was living happily with his sister in a Department of Housing house. However due to a bureaucratic policy around department of housing tenancies a third person was moved in with them. This occurred without discussion or consultation with either Michael or his sister.

The co-tenant became abusive to Michael’s sister. This naturally resulted in Michael becoming protective of her and beginning to hit out at the co-tenant. Eventually Michael became subject to Restrictive Practices, in particular physical restraint. Michael’s ‘behaviour’ was not explored and he was labelled an aggressor. By placing this label on Michael, no additional support was provided to prevent the escalation, nor was any consideration given to removal of the co-tenant. Rather, there was a reliance on using Restrictive Practices to manage the situation.

Michael’s advocate contacted QAI for assistance when the service provider requested ongoing approval to use Restrictive Practices. The Restrictive Practice order was revoked and additional supports were placed in the house to manage the situation. However, the co-tenant remains and the situation remains conflictual.

Involuntary treatment orders

People with disability who refuse treatment can be detained under mental health laws across Australia. Involuntary treatment in Australia, including for those people with a disability, is largely regulated by Mental Health legislation. The legislation provides for the ‘least restrictive alternative’ and ‘last resort’. Despite this, and also despite the lack of evidence that seclusion and restraint offers positive outcomes, they are frequently used. This use can be associated with further trauma, risk of violence and potential human rights abuses.

Australian laws fail to prevent the use of invasive and/or irreversible treatments such as psychosurgery, ECT and sterilisation (including the use of anti-libidinal drugs). Mental health laws also fail to adequately protect people with disability from arbitrary detention or involuntary treatment. They can be confined to residential facility, forensic disability services and even mental health facilities where they are subject to human rights violations including seclusion. This is despite that they may have been found as being not fit for trial and have

20

not been convicted of a crime. This period of detention often exceeds the maximum custodial sentence for the alleged offence and may be indefinite.

Australia’s interpretative declaration on Article 17 of the CRPD (protecting integrity of person) affects how the government views current mental health legislation, policy and frameworks surrounding involuntary treatment. The Government interpretation allows for compulsory/involuntary treatment when it is deemed necessary, as a last resort with appropriate safeguards. It is arguable whether these safeguards are sufficient.

While this interpretative declaration to Article 17 remains, it is unlikely that existing legislative, policy or practice frameworks governing involuntary treatment will change. QAI strongly believes that Australia must remove the interpretative declaration to Article 17 for there to be progress in this area.

Article 23 of the CRPD is also relevant here, as it prescribes rights pertaining to respect for home and family, including the right to make choices with respect to marriage, child-bearing and fertility. The sterilisation and chemical castration of people with disability without their consent is directly in breach of their rights to choice and autonomy with respect to their bodily integrity.

Case study – involuntary treatment

Tom is a 34 year old male with diagnoses of pervasive developmental disorder and intellectual disability.

Tom has a Forensic Order – Mental Health which was applied to him approximately 14 years ago. This was recently converted to a forensic order – disability. He was placed on the order because he was found to be of unsound mind. Later he was found to be permanently unfit for trail and the charges against him have never been tested in Court.

In 2011 Tom was moved from a mental health facility out to the newly established Forensic Disability Service. The purpose of this service is to provide habilitation and rehabilitation programs and to integrate the person back into the community.

Since moving to the service Tom’s only form of leave has been to attend to attend health appointments outside of the facility. This is despite community access leave being approved by the Mental Health Review Tribunal (MHRT). The reason given by the treating team for not allowing this leave is that Tom has failed to progress appropriately. When this reason was explored the treating team said that Tom did not participate fully in the rehabilitation program, was constantly challenging staff and the rules of the facility. Therefore until he complied with the program he would not have any leave as he would be a risk to the community. He is effectively punished for his disability.

When challenged about this approach the staff stated that they had tried everything to help Tom but nothing was working. QAI pointed out that in fact they had not tried everything because Tom was not allowed to do what he wanted to most, which was to be able to leave the facility to go shopping or to visit his parents.

It is nearly 4 years since Tom moved to this service which was supposed to improve his quality of life; however the opposite has happened.

Indefinite detention

Persons with an intellectual or cognitive impairment and forensic issues can be placed under a Forensic Order (Disability) as an alternative to processing through the mainstream criminal justice system. While there are many – mostly laudable – reasons for this diversion, there are also some substantive problems with this approach, both in its theory and application. Chiefly among these is the perpetual and enduring nature of Forensic Orders, with their uncapped terms potentially running indefinitely – this is a core concern with the process that

21

has many adverse implications. Placing a person under a restrictive and conditional order which is not time limited is not consistent with the accepted practice in equivalent criminal justice processes. It denies certainty for the future, can be therapeutically counter-productive and can keep people enmeshed within a system beyond the point at which it is appropriate or beneficial. Any Forensic Order should be linked to habilitation programs that are monitored for effectiveness and suitability to redress the issues that led to the detention in the first place. There is currently no mandate to ensure that habilitation is delivered, and no oversight of the quality or suitability of any programs provided.

The indefinite incarceration of persons with an intellectual or cognitive disability within the Forensic Disability Service (FDS) Unit is also a fundamental human rights concern. This is an issue that directly touches upon three core issues of vital importance from a human rights perspective: the inequitable and less favourable treatment of a person from a vulnerable, marginalised group; disregard for the presumption of innocence; and the deprivation of liberty for an indefinite period.

The human rights concerns are such that they have prompted a recent Senate Inquiry into the indefinite detention of persons with an intellectual, cognitive or psychiatric impairment. The United Nations have also called upon Australia to amend these laws.22

Case study:

Mr Noble was detained for more than 10 years without knowing how long he would be in custody, the Committee on the CRPD noted.

‘Taking into account the irreparable psychological effects that indefinite detention may have on the detained person, the Committee considers that the indefinite detention he was subjected to amounted to inhuman and degrading treatment,’ members wrote.

The Committee on the CRPD called on Australia to provide Mr Noble with an effective remedy and to immediately revoke the 10 conditions of his release, which members found also constituted a violation of the Convention.

Australia is also obliged to take measures to prevent similar violations, including making the necessary amendments to the Mentally Impaired Defendants Act (QA) and all equivalent or related Federal or State laws.

For further information, go to: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20566&LangID=E #sthash.NObjPWme.dpuf.

This is an area in which QAI holds considerable concerns. Through our Human Rights Legal Service, Justice Support Program and Mental Health Legal Service, we support and have supported a number of the most vulnerable people with disability who have experienced human rights violations in this area. We have also campaigned (and continue to actively campaign) for systems change in this area.

QAI unequivocally considers that the indefinite detention of persons with an intellectual, cognitive or psychiatric impairment is in breach of Australia’s human rights obligations. Australia is a signatory to a number of international treaties and conventions that should provide specific protection against this.

Persons with an intellectual or cognitive disability are vulnerable and already significantly marginalised within our society. As a group, they face stigma and discrimination, lower rates

22

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20566&LangID=E.

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20566&LangID=E

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20566&LangID=E

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of participation in the community and the workforce, adverse health outcomes with higher rates of chronic illness and lower life expectancy.23

This vulnerability is heightened when they come into contact with the criminal justice system. The same factors that increase their vulnerability and marginalisation also increase their chances of coming into contact with the criminal justice system, as victims, offenders and witnesses of crime. Vulnerability, disempowerment and marginalisation are strongly linked to imprisonment and indefinite detention for people with an intellectual, cognitive or psychiatric impairment.

QAI takes the position that it is inappropriate to indefinitely imprison any person with an intellectual, cognitive or psychiatric impairment. To do so is in breach of their human rights and dignities, erodes their capacity and skills, enhances their vulnerabilities and makes them the target of violence, exploitation and abuse.

The FDS Unit at Wacol in Brisbane, Queensland, where persons with an intellectual or cognitive impairment subject to a forensic order are detained, has been described as unfit for human habitation, resembling the harshest of prison-like settings. It is not an environment conducive to rehabilitation or ordinary living experiences. A negative cycle is perpetuated, where the capacity and ability of persons detained within the FDS continually declines and they become increasingly institutionalised, which in turn can erode the possibility that the Mental Health Review Tribunal will favourably consider their prospects of community re-integration.

As noted above, the general principles stated in the CRPD include respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non-discrimination; and full and effective participation and inclusion in society.24 The reality of detention in the FDS is not consistent with these general principles.

Article 12 of the CRPD requires that persons with disabilities are given equal recognition before the law. Safeguards that are prescribed to support the exercise of legal capacity and to prevent abuse include ensuring that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The indefinite detention of persons with an intellectual or cognitive impairment contravenes Article 12.

Article 13 of the CRPD seeks to facilitate equal access to justice for persons to disabilities. That a person with an intellectual or cognitive disability can be charged with an indictable offence yet not provided with the opportunity to answer this charge arguably does not amount to any access to justice and certainly falls short of equality of access. The failure to provide persons charged with an indictable offence with the opportunity to defend themselves against the charge also contravenes the right to equal integrity of person protected by Article 17 of the CRPD.

Further, the detention of individuals with intellectual disabilities purely on the basis that they may pose a risk to others raises substantial human rights concerns.25 Article 14 of the CRPD requires States Parties to ensure that persons with disabilities:

23

Including Aboriginal and Torres Strait Islander people, people with disability, people in rural and remote regions, refugees and asylum seekers (particularly those in detention), people from culturally and linguistically diverse backgrounds, LGBTI people, children and adolescents, prisoners, and people experiencing chronic disease, unemployment and homelessness: Joint NGO Submission to the 2015 Universal Periodic Review of Australia. Available from Human Rights Law Centre < http://hrlc.org.au/upr/>. 24

Article 3 of the Convention on the Rights of Persons with Disabilities. 25

B McSherry. 2012. The Involuntary Detention of People with Intellectual Disabilities. Right Now: Human Rights

in Australia.

23

..are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability alone shall in no case justify a deprivation of liberty.

Article 14 also states that where persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to be treated in compliance with the objectives and principles of the CRPD, including by provision of reasonable accommodation. Article 19 of the CRPD, which covers the right to community living, is also relevant here, as by this provision persons with disability are to be accorded the equal right to live, participate and be included in the community, with choices equal to others regarding their place of residence and living arrangements.

Laws, policy and practices that involuntarily detain people with intellectual or cognitive disability limit their rights to liberty and security and equal recognition before the law. The involuntary detention of persons with an intellectual or cognitive disability on the basis of a risk of harm to others is discriminatory because those without mental or intellectual disabilities are not, as a general rule, indefinitely detained on this basis in the absence of a criminal conviction.

Article 15 of the CRPD provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, with Article 16 prohibiting exploitation, violence and abuse against persons with disability. These Articles align with the United Nations’ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits such conduct against persons with disability.

Article 26 affirms the right to comprehensive habilitation and rehabilitation services, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. As noted above, when people with disability are incarcerated, whether within a prison, the Forensic Disability Service or an Authorised Mental Health Service, this right to habilitation and rehabilitation guaranteed by Article 26 of the CRPD is not mandated, monitored for effectiveness or even necessarily provided.

Other provisions of the CRPD which are directly relevant include Article 22, which affirms respect for privacy (which is not available to persons incarcerated within the FDS), Article 25, which establishes the right to health and the non-discriminatory provision of services and Article 28, which requires that persons with disability be provided with access to an adequate standard of living and social protection.

The implementation of the CRPD is monitored by the United Nations Committee on the Rights of Persons with Disabilities. In response to a Tunisian report, the Committee recommended that Tunisia ‘repeal legislative provisions which allow for the deprivation of liberty on the basis of disability, including a psychosocial or intellectual disability’.26 Responding to a similar scenario in Spain, the Committee stated that Spain must:

… repeal provisions that authorize involuntary internment linked to an apparent or diagnosed disability; and adopt measures to ensure that health-care services, including all mental-health-care services, are based on the informed consent of the person concerned.27

The European Court of Human Rights (ECHR) has held that a failure to provide adequate mental health care to prisoners in circumstances which do not adequately accommodate, or result in the deterioration of, a person’s mental health, may amount to a violation of the prohibition on torture and ill-treatment. Australia is not a signatory to the European

26

B McSherry. 2012. The Involuntary Detention of People with Intellectual Disabilities. http://rightnow.org.au/topics/disability/the-involuntary-detention-of-people-with-intellectual-disabilities/. 27

B McSherry. 2012. The Involuntary Detention of People with Intellectual Disabilities.

http://rightnow.org.au/topics/disability/the-involuntary-detention-of-people-with-intellectual-disabilities/.

24

Convention Against Torture but is party to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention Against Torture, all of which provide that no-one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment in Articles 5, 7 and 16 respectively.

The Convention Against Torture implies that all prisoners have a right to adequate ‘treatment’ and support, and this applies in principle if not substantively to Queensland prisoners with intellectual impairments. There is scant Queensland case law on this issue. A Victorian court has ruled in a way that is consistent with the ECHR, warning that the imprisonment of a person with a severe psychiatric illness may be contrary to the spirit, if not the letter, of the Victorian Charter of Human Rights.28 Queensland needs a similar charter of rights so that concerned parties can call government to account for lapses such as these.

Human rights protections are also found in other UN treaties. The UDHR, ICESCR and ICCPR all provide protection for the rights of persons with disabilities to participate in an ordinary and inclusive life. The Convention on the Rights of the Child protects all persons under 18 years of age from human rights breaches including the right not to be separated from their families (Article 9), the right to privacy (Article 16), to protection from violence, abuse and neglect (Article 19), to an education (Article 28) and leisure (Article 31), to be protected from activities that could harm their development (Article 36) and to not be treated cruelly if they break the law (Article 37).

Case study

Jason (not his real name) was placed on a forensic order by the Mental Health Court for the alleged offences of breaching a domestic violence order and public nuisance. He was diagnosed with schizophrenia. The public nuisance and breach of a domestic violence order charges did not involve violence against anyone. Jason expressed regret that his charges were dealt with by the Mental Health Court as the forensic order impacted on his freedom significantly. Jason felt that being on a forensic order was a disproportionate punishment for offences that would ordinarily receive low penalties. He considered that if the same charges were dealt with in the Magistrates Court, he may have only received a fine or good behaviour bond. Under the forensic order he was detained in hospital mental health wards and at the Park Centre for Mental Health in a secure setting for approximately three years. Following this period of detention, his freedom remained limited by the restrictions of the forensic order, such as attending compulsory appointments with the treating team and undergoing random drug tests. Being on a forensic order made it more difficult for him to obtain employment, see his children or build new friendships. Jason looks forward to the day when the forensic order will end and he can regain his freedom.

Access to justice

Article 13 of the CRPD recognises the right to equal, effective access to justice for persons with disabilities. This is a broad right that is relevant to a number of different concerns. As noted above, this human right has relevance for those charged with an offence (and is infringed by the indefinite detention of a person charged with an indictable offence within a purpose-built forensic detention unit without giving them an opportunity to answer the allegations made against them). It is also directly relevant to the plight of witnesses and jurors with disabilities. QAI takes the position that jury service is a litmus test for participatory citizenship. Article 12 of the CRPD proposes that persons with disabilities

28

R v White [2007] VSC 142. There, Bongiorno J had no choice but to send a man with a severe psychiatric

disability to prison because there was no room for him in a psychiatric unit.

25

should be provided with the supports they need to exercise their legal capacity on an equal basis with others.

The Australian Law Reform Commission has taken that position that decision-making principles should include the proposition that ‘[p]ersons who may require decision-making support should be supported to participate in and contribute to all aspects of life’.29 Given the overrepresentation in the criminal justice system of people with disability as defendants and offenders, it is ironic that people with disability may be denied a place in the jury room, which is both symbolically and substantively the key public contribution to the determination of criminal responsibility and the administration of criminal justice.

Filters that currently operate to exclude people with disabilities include:

Only persons enrolled as electors are eligible for jury service. People deemed to be of ‘unsound mind’ may be excluded from the electoral roll.

A person who has a ‘physical or mental disability’ that makes them incapable of effectively performing the functions of a juror is not eligible for jury service in Queensland.

There is no allowance for modifications or support required by persons with disability, such as the presence of an Auslan interpreter.

High Court refusal to allow deaf woman to serve on a Queensland jury

The High Court recently made a determination regarding this issue. The High Court unanimously rejected an appeal from Gaye Lyons, a Queensland woman who sought to participate as a juror yet was denied the right to participate in the jury process for the reason that she requires an Auslan interpreter.

This decision has been the subject of much concern from advocates and lawyers, and has prompted calls for amendment to the Jury Act 1995 (Qld) and equivalent legislation in other states.

See: Lyons v State of Queensland [2016] HCA 38

A core component of access to justice is having the financial means necessary to enable this. The CRPD contains a number of provisions that are relevant to the support the Australian welfare system provides to its most vulnerable citizens. For example, Article 26 (which pertains to habilitation and rehabilitation), Article 27 (which pertains to work and employment) and particularly Article 28 (which prescribes an adequate standard of living and social protection), must be noted.

The interplay between state and commonwealth funding policies and agreements is a fraught and complex issue, particularly where it pertains to vulnerable members of society, who may need financial support that is additional to that required by other members. This is the case for many people with disability, who may require – by virtue of their disability – enhanced financial resources whilst simultaneously experiencing, for a myriad of reasons discussed further below, diminished engagement with the workforce or lower remuneration for this engagement.

Education

Australia has signed and ratified the core international human rights law instruments that establish the right to inclusive education. This includes the CRPD (where Article 24 establishes the clear and unequivocal right to education without discrimination and with equal opportunity, including the right to inclusive education), the UN Convention on the

29

Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth laws, Report 124

(2014) 234-42.

26

Rights of the Child, the World Declaration on Education for All, the UN Standard Rules on Equalisation of Opportunities for Persons with Disabilities and the Salamanca Declaration and Framework for Action.

In Australia, progress has been made towards inclusive education. For example, in the thirteen years from 2000 to 2013, Australia’s Report Card documents some progress across a range of markers. Yet, as Jackson and Wills conclude, we are at present only mediocre in the way we translate this commitment to inclusivity in the educational realm.30 This is the case notwithstanding express commitment from the Australian government to inclusive education in a raft of laws and policies, including the Council of Australian Government’s National Disability Strategy (2011), the Disability Discrimination Act 1992 (Cth) and the Disability Standards for Education (2005) made pursuant to that Act, the Australian Curriculum, the Australian Professional Standards for Teachers, the National Quality Framework and the Early Years Learning Framework for Australia.

There remains much work to be done before the right to inclusive education is enjoyed by all, or sadly even many, people with disabilities. Right now, an inclusive education – and indeed for some, any education at all – remains an elusive goal for many millions of people with disabilities throughout the world, including in Australia. Instead, the experience of the majority of people with disability has been and continues to be one of segregation into ‘special’ schools and educational units. The problems in the educational realm do not only exist at the primary and secondary levels of education, but remain a significant issue at the tertiary level. The Australian Youth Affairs Coalition takes the position that young people with disability need to be recognised as a key stakeholder group within the tertiary education system, noting ‘much greater support is urgently needed for students with disabilities across the whole Australian education system’.31 Funding for tertiary students with disability is also recognised as a significant issue.32

Yet with some simple changes, both in attitude and practice, the situation in Australia could be very different. As a starting point, for many people with disability, the provision of appropriate support is critical and can make a profound difference to their decision-making and capacity and to their educational and other life outcomes. All support provided must be made available in a properly inclusive way, with support provided to assist teachers to properly teach a diversity of children, including children with disability. Any additional support that is made available, such as in the form of additional teacher’s aides, must be specifically directed towards supplementing the teacher’s work in this regard.

Also, there is a need for further education of teachers in disability. In Australia’s 2013 Inclusion Report Card it was found that inadequate education and professional development for teachers and specialist support staff are key areas conflicting with the stated goal of inclusivity in education.

Attitudes are at the heart of many problems and have been identified as a key issue in the move towards inclusive education in Australia.33 It is important to challenge and dismantle negative stereotypes and take a pro-active approach to raising awareness of the important benefits, for people with disability and for society more broadly, that flow from inclusive education. Schools should reflect the community and the people who live in them. A school which excludes students who live in that community is an artificial environment, and this artifice ignores that humanity is comprised of diverse peoples who all contribute to that society even merely by their presence.

30

Jackson, Robert and Wills, Darrell. The 2013 inclusion report card: From failure to mediocrity. 31

Australian Youth Affairs Coalition. Survey Results: Disability and Tertiary Education. August 2011, 7. 32

Based on 2013 findings of Productivity Commission and 2015 Nationally Consistent Collection of Data (NCCD) on School Students with Disability. 33

Department of Employment and Workplace Relations, 2012. Report on the Review of Disability Standards for Education 2005. Canberra: Commonwealth of Australia.

27

Finally, we must take immediate action to stop the use of Restrictive Practices within educational institutions in Australia. The use of Restrictive Practices on vulnerable people with disability, as noted above, is an issue that permeates all areas of service provision for people with disabilities and is a significant human rights concern. In Australian schools and educational institutions, there have recently been horrific instances where Restrictive Practices have been used on children and youths in unspecified, unsanctioned and illegal ways. For example, recent allegations of physical and emotional abuse and deprivation of liberty of a child with disability include the caging of a 10 year old boy with autism in a Canberra classroom,34 locking a child with autism in a dark cupboard at a Newcastle school,35 tying a child with special needs to a chair with a seat belt,36 and constraining an autistic boy in a cell-like room.37 These appalling human rights abuses must immediately cease and strong protective measures put in place to guard against similar occurrences.

Article 37(1) of the Convention on the Rights of the Child prohibits the use of Restrictive

Practices on children, requiring that no child is subjected to torture or other cruel, inhuman or degrading treatment or punishment. QAI submits that the unsanctioned and unregulated use of Restrictive Practices on children by the Department of Education constitutes torture and/or cruel, inhuman and degrading treatment and therefore contravenes the requirements established by international human rights law. Yet there is presently an absence of specific protection for children against the use of Restrictive Practices under Queensland law. Protecting children from the application of Restrictive Practices is central to the ‘safety, wellbeing and best interests of a child’, which is identified as the paramount principle of the Act.38 Legislation such as the Child Protection Act 1999 (Qld) must prohibit or regulate the use of these type of practices by authorities such as educational institutions on children with disabilities as part of its core work.39

Health

The human rights pertaining to health are protected in various UN treaties and Conventions. Most notable are the UDHR (Article 25), the ICESCR (in Articles 11.2 and 12), the CRPD (Article 25), the CRC (Articles 3, 17, 24 and 25), the CEDAW (Article 12) and the CERD (Article 5(e)(iv)).

It is helpful to first look at the respective ways in which the right to health is formulated and articulated:

the right to health is incorporated into a broad entitlement to ‘an adequate standard of living’ in Article 25 of the UDHR, with special emphasis given to access to ‘medical care’ and ‘security in the event of … sickness’;

the right to health in Art 12 of ICESCR includes an individual entitlement to essential health care. The content of Art 12 of the ICESCR is widely understood to encompass certain freedoms (such as freedom from non-consensual treatment) and certain entitlements. The text of the ICESCR sets out some of the content of the right to health and this has been added to by the Committee in its General Comment 14, where it designated a range of additional matters as ‘core obligations’, ‘obligations of comparable priority’, ‘interrelated and essential elements’ and ‘special topics’. These ‘special topics’ include non-discrimination and equal treatment,

34

Rachel Browne, ‘Children with autism caged and abused at school’, The Sydney Morning Herald (online), 2

April 2015 <http://www.smh.com.au/nsw/children-with-autism-caged-and-abused-at-school-20150331-1mbt48.html. 35

http://mobile.abc.net.au/news/2015-12-16/police-investigate-schools-treatment-of-autistic-child/7032038?section=nsw. 36

http://www.scribd.com/doc/287809156/Parents-Claim-Special-Needs-Student-Tied-to-Chair-With-Seat-Bel. 37

http://www.scribd.com/doc/287338662/School-Puts-Autistic-Boy-in-Cell-Like-Room-QLD. 38

Child Protection Act 1999 (Qld), s.5A. 39

See http://www.smh.com.au/nsw/autistic-boy-died-are-being-bound-to-chair-and-showered-in-cold-water-court-20151111-gkwc17; http://www.abc.net.au/news/2015-11-10/teenager-found-chained-to-bed-in-blacktown-sydney's-west/6928444.

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gender, women, children and adolescents, older persons, persons with disabilities, and indigenous people.40 In addition to the requirement of financial accessibility, Art 12 ICESCR obliges State parties, as essential elements of the right, to ensure that health care is available and physically accessible;41

Article 24 of the CRC requires that states ‘recognise the right of the child to the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health’;

Article 25 of the CRPD reiterates the right to health previously established by the ICESCR but takes this right further – the CRPD also obliges parties to take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation.

Articles 3, 24 and 25 of the CRC establish the right of all children to the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health and oblige States parties to ensure no child is deprived of his or her right of access to such health care services. These Articles require that States parties ensure all relevant institutions, services and facilities charged with the care or protection of children comply with appropriate health and safety standards;

Article 12 of the CEDAW obliges States parties to take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning;

Article 5(e)(iv) of the CERD establishes the right to public health, medical care, social security and social services.

In General Comment No 14 of UNCESCR, it was noted that the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.42

In Australia, the omission of the ICESCR from the scope of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) has led to some debate as to whether remedies are available to enforce the right to health. This is problematic, given that implementation of the enjoyment of the right to the highest attainable standard of physical and mental health under the ICESCR is dependent on the existence of domestic remedies to enable individuals and groups to enforce this right.43

Australia has taken the view that the CRPD allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental illness, where such treatment is necessary as a ‘last resort’ and subject to ‘safeguards’. Involuntary treatment in Australia, including for people with a disability, is largely regulated by Mental Health legislation. The legislation provides for the ‘least restrictive alternative’ and ‘last resort’. Despite this, and also despite the overwhelming lack of evidence that seclusion and restraint offer positive outcomes, they are frequently used. This use can be associated with further trauma, risk of violence and potential human rights abuses.

Whilst mental health laws vary across Australia they all have failed to prevent, and indeed in some cases have condoned, practices such as psycho-surgery, ECT and sterilisation (non-

40

See General Comment 14, n 46 at [18]-[29]. 41

This is detailed by the Committee’s General Comment 14, n 46 at [12], with ‘availability’ defined as the state

providing its people with the amount of functioning health care facilities, goods, services and programs that are

sufficient for the population as a whole; ‘physical accessibility’ concerned with distribution of those resources

across the population and ensuring premises are built to allow entry and navigation by persons with physical

disabilities.

42 Para 9.

43 Bernadette McSherry 2008 ‘Legal issues: The United Nations Convention on the Rights of Persons with

Disabilities’ Journal of Law and Medicine 16 JLM 17.

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therapeutic). QAI holds strong concerns that people with disabilities can be arbitrarily subject to involuntary treatment. Further, these laws fail to comply with international human rights standards.

These laws also fail to prevent people with disability being subject to arbitrary detention. Some are detained in forensic disability services or high/medium security units of mental heath facilities, despite being found not fit for trial and/or not having been convicted of a crime. Their period of detention often exceeds the maximum custodial sentence for the alleged offence and may be indefinite. The interpretative declaration to Article 17 of the CRPD underpins Australia’s mental health laws and whilst it remains, it is unlikely that existing legislative, policy or practice frameworks governing involuntary treatment will change.

The conflation of disability (especially intellectual impairment) with mental illness and the attempts to ‘manage’ and ‘treat’ disability within a medical model has had devastating results. It has resulted in the inappropriate warehousing of people with disability, the abuse of people with disability by staff who fail to understand their disability support needs and by other ‘patients’ who don't understand people with disability or who find their behaviours provocative. This confusion and misunderstanding has also manifested in inappropriate treatments, including drugging to manage or control people's behaviour or for ease of patient management, and electroconvulsive treatment for medical conditions or mental illness when people with disability do not have those conditions. Furthermore, it results in medical ‘treatments’ including the sterilisation of women and girls and the castration of boys and men to manage menstruation, inhibit libido and to avoid pregnancy. This is a ‘problem management approach’ rather than a supports and educational approach that is fitting for the supports and services of human beings. This management style approach has proved largely ineffective in preventing abuse or sexual assault and only mitigates the consequences of pregnancy.

The Australian Government’s stated position on the issue of sterilisation is that it recognises the right of persons with disabilities to retain their fertility on an equal basis with others and that sterilisation is a serious issue, given its invasive and irreversible nature. However, authorisation of sterilisation by the relevant court or tribunal is permitted where it can be shown that it is not done solely on the basis of the child’s disability, it is a measure of last resort and that due consideration has been given to the best interests of the children.

Housing and family rights

Issues relating to housing for people with disability touch on a number of human rights and responsibilities. We will now briefly outline some of the main rights and related concerns.

A good starting point is to consider Article 19 of the CRPD, which sets out the right to live independently and be included in the community. This includes the right to choice with respect to where and with whom you live, on an equal basis with others, the right not to be obliged to live in a particular living arrangement, and the right to access appropriate support. The lived experiences of people with disability in Australia do not embody these rights.

The right to have choice and control about where and with whom you live has an enormous impact on quality of life. If denied, it can translate into a chain of suboptimal outcomes, including the experience of violence, abuse and neglect and the expression of feelings of frustration and anger at a lack of choice that may be interpreted as ‘behaviours and concern’ and result in the application of Restrictive Practices.

Even where living arrangements are accepted by the person with disability, the problems associated with institutional living are well documented. While 24x7 care is purportedly designed to cover all aspects of a person’s needs, there are many prominent examples of situations where there has been a complete disregard for the fundamental needs of a person with disability. Many healthcare needs, including dental care, are often neglected with poor

30

outcomes. These outcomes are obviously a far cry from what is intended by the right to the enjoyment of the highest attainable standard of health without discrimination, as set out in Article 25 of the CRPD.

There are also often flagrant breaches of the right to privacy, despite that this right is recognised by Article 22 of the CRPD. Very basic measures, such as provision of a shower curtain so that a person can bathe in privacy, can be denied.

An issue presently of concern for QAI is that section 216 of the Criminal Code (Qld), which is directed towards preventing abuse of persons with intellectual or cognitive impairment, can potentially result in a person incurring criminal liability where they engage in a sexual relationship with a person with disability. We are concerned that section 216, as presently drafted, is in breach of the right to choice and equality with respect to marriage and family relationships that is established by Article 16 of the CEDAW. There is tension between the common practice of preventing relationships from developing in congregate settings, whilst ignoring abuse within the same setting. This provision makes those who support people with disability liable to prosecution where they assist the person to make an appointment with a sex worker, or ask the sex worker to visit the person in their home.

There are also many issues that arise within this context that relate to the child protection system in Australia. These issues are many and varied and it is outside the scope of this paper to do more than briefly touch upon them. However, we note that a serious issue in this regard is the removal of children into custody simply on the basis that the parent(s) has a disability and is deemed (without further investigation or any history of demonstrated lack of ability) incapable of caring for their child. This often occurs immediately following the birth, while the mother is still recuperating in hospital.

As noted by the Anti-Discrimination Commissioner of Queensland, Kevin Cocks, it is important that legal systems that seek the best interests of Australia’s children enable rather than disable families.44 This requires that child protection systems take a holistic view of a desirable outcome that does not place in opposition the needs of parents and children but rather understands that the best interests of parents and children most often align. This places a positive requirement on the government to ensure that necessary support and education is provided to parents with disability, particularly in the initial phase of parenthood where all parents are learning to parent. The requirement to give persons with disabilities assistance in the performance of their child-rearing responsibilities flows directly from Article 23 of the CRPD.

The provision of appropriate education and support obviously requires the infusion of Government funding. This is often a stumbling block to authentic reform. However, QAI submits that this is not a legitimate barrier. It is now well known that investing in early intervention measures brings positive outcomes across a range of areas45 and this is particularly true when it comes to persons with an intellectual or cognitive disability. The financial costs of supporting children in state or foster care who have been removed from their parents are significant, not only during the period of care but as ongoing economic costs to society. The link between childhood trauma and separation from family and community and later anti-social behaviour, including criminality, are now well documented.46

44

Kevin Cocks. Human rights of parents with intellectual disability, 19 November 2012. Available at

http://www.adcq.qld.gov.au/about‐us/the‐commissioner/speeches. 45

Moore, T.G. and McDonald, M. (2013). Acting Early, Changing Lives: How prevention and early action saves money and improves wellbeing. Prepared for The Benevolent Society. Parkville, Victoria: Centre for Community Child Health at The Murdoch Childrens Research Institute and The Royal Children’s Hospital. 46

For example, recent statistics show that more than a quarter of all the children in NSW juvenile prisons have come from foster care: http://www.abc.net.au/radionational/programs/backgroundbriefing/2013-11-17/5086254. Matthew Lindquist and Torsten Santavirta. (2014) Does placing children in foster care increase their adult criminality? Swedish Institute for Social Research, Stockholm University, 106 91 Stockholm, Sweden.

http://www.abc.net.au/radionational/programs/backgroundbriefing/2013-11-17/5086254

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There have recently been reports in the media of parents relinquishing children to foster care as the only means of gaining access to the additional support their children require.47 Foster caring is an expensive business for the government. QAI submits that resources presently directed towards supporting children in foster or state care once they have been removed from parents should instead be spent on supportive measures directly aimed at helping families that include a parent with disability to remain together.

The statistics paint an alarming picture of the extent of the overrepresentation of parents with disability who have children removed from their care. In Australia, almost one in 10 cases brought before the children’s court featured a parent with intellectual disability. In comparison to population estimates of less than 1%, this is a significant overrepresentation when compared to parents with psychiatric disability, or substance abuse issues.48 Furthermore, in Australia one-third of parents with learning difficulties experience the removal of at least one of their children.49 Parents with intellectual disability are at greater risk than any other parent of losing parental custody of their child.50 Mayes and Llewelyn note:51

The view remains widely held that people with intellectual disability are unlikely to be able to be good enough parents and that they are unlikely to be able to learn to parent appropriately. There is good evidence that the decision to remove a child from parents with intellectual disability is more likely to be based on prejudicial views about the capabilities of these parents than on evidence of child neglect or maltreatment.

Further research considering the prevalence and outcomes for parents with disabilities and their children in Australian court proceedings presents a similar picture, highlighting that despite evidence that abuse and maltreatment is rare among the children of people with disabilities, high rates of child removal from parents with psychiatric disability or intellectual disability are reported.52 The parents are disadvantaged on multiple levels in that they may be denied support to participate in the court proceedings and therefore have little chance of a desirable outcome.

Similarly, a further research study examining stereotyping in the case of parents with intellectual disability and child protection noted that successive international studies reported unusually high rates of children being removed from their parents with intellectual disability.53 This research found that, in some cases, individual capabilities and unique circumstances of each parent had not been given due consideration by child protection authorities and courts, whilst in others parents needing help with their children were not being offered these services prior to their children being removed.54 The authors noted the research evidence showing both a significant over-representation and more intrusive outcomes for parents with

47

Couple forced to give up autistic son. Courier Mail. 16 October 2015. 48

Rachel Mayes and Gwynnyth Llewellyn, ‘What happens to parents with intellectual disability following removal of their child in child protection proceedings?’ (2009) Journal of Intellectual and Developmental Disability 34 (1):

92-95, 92. 49

Tim Booth, Wendy Booth and David McConnell, ‘Care proceedings and parents with learning difficulties:

comparative prevalence and outcomes in an English and Australian court sample’. 50

Rachel Mayes and Gwynnyth Llewellyn, ‘What happens to parents with intellectual disability following removal of their child in child protection proceedings?’ (2009) Journal of Intellectual and Developmental Disability 34 (1):

92-95, 92. 51

Rachel Mayes and Gwynnyth Llewellyn, ‘What happens to parents with intellectual disability following removal of their child in child protection proceedings?’ (2009) Journal of Intellectual and Developmental Disability 34 (1): 92-95, 92. 52

Gwynnyth Llewellyn, David McConnell and Luisa Ferronato, ‘Prevalence and outcomes for parents with disabilities and their children in an Australian court sample’ (2003) Child Abuse & Neglect 27: 235-251, 236. 53

David McConnell and Gwynnyth Llewellyn, ‘Stereotypes, parents with intellectual disability and child protection’ (2002) Journal of Social Welfare and Family Law 24 (3): 297-317, 297. 54

David McConnell and Gwynnyth Llewellyn, ‘Stereotypes, parents with intellectual disability and child protection’ (2002) Journal of Social Welfare and Family Law 24 (3): 297-317, 298.

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intellectual disability.55 Against this, they note that allegations of child abuse being perpetrated by parents with intellectual disability are quite rare.56 Yet notwithstanding this, a ‘history of deprivation and social disadvantage often marks the lives of these parents…’57 As the authors note:58

Review of [the] literature suggests the influence of two prejudicial presumptions about parents with intellectual disability, (1) that these parents will inevitably mistreat their children or put them at risk from others, (2) that any perceived parenting deficiencies are irremediable and that there is little point in offering such parents support. These presumptions have been found to pervade child protection and court processes in Australia … there is a strong tendency to conflict intellectual disability with perceived parenting deficiencies; such that parents were often presumed to need 24-hour supervision over the long term.

The perpetuation of this stereotype is particularly alarming when we consider that the child of a parent with a disability is far more vulnerable to abuse and neglect when placed in state or foster care. While the research does not show a correlation between parental disability and parental abuse, the disproportionate rates of abuse and neglect of children in state or foster care is well documented.59 The impact of this double trauma on children – separation from their parents and subsequent abusive treatment – is of high economic and social cost to society. If the approach and accompanying mindsets are changed, there will be benefits for all concerned. In the context of the ultimate socio-economic costs associated with failing to respect the human rights of all involved, the cost of providing appropriate support are insignificant.

Refreshingly, in the New South Wales Supreme Court case of Re Georgia and Luke [No. 2],60 the Court specifically confronted an officer of the Department of Children’s’ Services who referred to a ‘history of mental health issues’, noting the inappropriateness of this submission given that there was ‘not the slightest evidence before this Court of a “history of mental health issues”, whatever that vague phrase is intended to mean.’ Yet this case is the exception rather than the rule. It is inappropriate to leave the fate of families that include a parent with a disability to the hands of a Magistrate or Judge who is deciding in light of precedents heavily weighted against parents with disability, with insufficient legislative or policy guidance to protect the parents’ rights.

QAI is aware of anecdotal evidence that many parents with an intellectual impairment have their children removed from them and placed into state care immediately following the birth of the child or very soon thereafter. Through the individual advocacy services that QAI operates, including the Justice Support Program, the Human Rights Legal Service and the Mental Health Legal Service, we have received direct contact from a number of highly distressed parents who have had, or have been notified that they will have, their child or children removed at or immediately following their birth for reason of their intellectual or cognitive disability or mental illness.

55





Philip Menes and Badal Moslehuddin. Transitioning from state care to state prison: a critical analysis of the relationship between leaving out of home care and involvement in the criminal justice system. Social Alternatives,

Volume 28, No.3, 2009, pp.51-56. 60

[2008] NSWSC 1897 (19 December 2008), at 200.

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This is also an issue that has been the subject of significant alarm amongst human rights advocates and disability support groups, and has generated concerned media attention.61 This is directly at odds with the requirement of Article 23(4) of the CRPD, which demands that States parties ensure that children are not separated from their parents on the basis of a disability of either the child or one or both of the parents.

In Victoria, these concerns have prompted the Public Advocate to release a report condemning the child protection system for its failure to protect the human rights of parents with disabilities – in particular, an intellectual or cognitive disability or a mental illness – by removing their children into state care at a disproportionately high rate.

In her report, Rebuilding the village: Supporting families where a parent has a disability,62 Victorian Public Advocate Colleen Pearce documents the alarming reality that the intellectual disability or mental illness of a parent is categorised as a major risk for their children by the Department of Health and Human Services. A key rationale behind the report was concern to bring about systems change and develop adequate human rights protections to override false, prejudicial assumptions about the unsuitability of people with an intellectual or cognitive disability or mental illness to be fit parents and help them to retain custody of their children. A core concern of this report is that, rather than the fact of the disability being something that triggers the provision of additional support for the parent, particularly in the initial stages of parenting where they are learning the basic skills involved, the disability becomes a reason to remove the child from the parent, in the absence of any other circumstances justifying this.

Notwithstanding the disproportionate extent to which parents with intellectual disability have their children removed from their custody and care, there has been very little research, in Australia or elsewhere, on the following crucial issues:

decision-making processes and protocols that result in this removal;63

the perspectives of the parents who lose their children in this way; or

the outcomes for their children.64

The small body of research that does exist on these issues reports mothers’ feelings of grief, sadness, loss, emptiness and at times anger.65 It also documents their sense of powerlessness in the child protection system, in terms of their inability to influence, alter or control their situation.66 Yet this is where our knowledge base ends. There has been

61

See for example: http://www.abc.net.au/news/2012-10-23/calls-for-changes-to-child-removals-from-disabled-parents/4329772 and http://www.theage.com.au/victoria/parents-with-a-disability-face-greater-chance-of-losing-children-report-20150921-gjri4e.html. 62

Office of the Public Advocate. (2015) Rebuilding the village: Supporting families where a parent has a disability. Report 2: Child Protection. 63

Consistent across several continents is the finding that between 40 and 60% of all children born to parents with

intellectual disability will be removed from their parents ’care: Rachel Mayes and Gwynnyth Llewellyn, ‘Mothering

differently: Narratives of mothers with intellectual disability whose children have been compulsorily removed’

(2012) Journal of Intellectual and Developmental Disability 37 (2): 121-130; Tim Booth, Wendy Booth and David

McConnell, ‘Care proceedings and parents with learning difficulties: comparative prevalence and outcomes in an

English and Australian court sample’. 64

Rachel Mayes and Gwynnyth Llewellyn, ‘Mothering differently: Narratives of mothers with intellectual disability

whose children have been compulsorily removed’ (2012) Journal of Intellectual and Developmental Disability 37

(2): 121-130. 65



(2): 121-130. 66



(2): 121-130 .

http://www.abc.net.au/news/2012-10-23/calls-for-changes-to-child-removals-from-disabled-parents/4329772

http://www.abc.net.au/news/2012-10-23/calls-for-changes-to-child-removals-from-disabled-parents/4329772

34

inadequate attention on ways to support these mothers, either to retain or regain custody of their children or to support them in other ways to maintain relationships with their children.67

We do know that parents with disabilities, particularly those with intellectual disabilities, are likely to ‘suffer considerable disadvantage in dealing with the child protection and Children's Court systems’ and to ‘have their capacity to care more harshly judged’ than their non-disabled counterparts.68 This constitutes discrimination against parents on the basis of their intellectual disability.69

This discrimination seems particularly unjust given the strong evidence-base that shows that the parenting skills of mothers with an intellectual disability can be improved by support and training in parenting skills.70 As Booth, Booth and McConnell note:71

In the light of this evidence base, the disproportionate number of parents with learning difficulties coming before the Family Courts can just as easily be taken as a sign of service system failure as parenting failure.

This is essentially a double failure – this vulnerable group is a subset of society that we fail to adequately support in the first place; we then also fail to support them to care for their children, perpetuating a cycle of disempowerment.72

Articles 7, 8 and 9 of CRC establish the right to an identity and to know and be cared for by child’s parents, and only separated where it is found that separation is in the best interests of the child. This right is not being respected in Australia at present.

Work

The rights to work and employment, along with industrial rights, are proclaimed in a number of international treaties and conventions, as follows:

the right of persons with disabilities to work, on an equal basis with others, including the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities, is proclaimed in Article 27 of the CRPD;

the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and to just and favourable working conditions, is expressed in Articles 6.1 and 7 of the ICESCR;

the rights of women to equality and non-discrimination in work and employment is proclaimed by Article 11 of the CEDAW;

the rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work and to just and favourable remuneration are protected by Article 5(e)(i) of the CERD.

In Australia, the domestic legal framework in Australia that is relevant for persons with disabilities to enjoy these work and industrial rights includes:

67



(2): 121-130. 68










comparative prevalence and outcomes in an English and Australian court sample’.

35

the Disability Discrimination Act 1992 (Cth), the stated objects of which include to eliminate, as far as possible, discrimination against persons on the ground of disability in the area of work and to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community;

the Fair Work Act 2009 (Cth), which incorporates anti-discrimination requirements into workplace law.

Each Australian state and territory has also enacted roughly equivalent state legislation – in Queensland, the relevant legislation is the Anti-Discrimination Act 1991 (Qld) and the Industrial Relations Act 1999 (Qld).

Yet the right to work is a human right that is presently not enjoyed by all people, particularly vulnerable people such as people with disability. As the recently released ‘Willing to Work’ Report of the Australian Human Rights Commission documents, Australians with disability are employed at significantly lower rates than Australians without disability,73 with a high proportion of Australians with disability reporting an experience(s) of discrimination or unfair treatment within the work sphere because of their disability.74 However, it should be noted that these figures may be skewed by the exclusion of the numbers of people with disability on the Disability Support Pension who are deemed ‘unemployable’, and the unemployment rates of people with disability may actually be higher. People with very high or complex support needs are not even considered in the employment sphere because most employers and government bureaucrats cannot conceive that they could potentially work in open employment. This extends even to voluntary, unpaid work.

The anti-discrimination laws in Australia are presently reactive, rather than proactive, and place an unjust onus on the person subjected to discriminatory treatment to bring a legal action against their employer or potential employer. This is clearly inappropriate, having regard to the power imbalance that exists between any individual and organisation, which is inflated when the individual is a person with disability who has likely experienced multiple disadvantages throughout their life.

The sanctions ultimately imposed on those found to have engaged in discriminatory conduct are also so insignificant that they fail to act as a deterrent to future conduct, or provide a warning to others not to similarly act. The anti-discriminatory laws require significant improvement.

Matters pertaining to the employment of people with disability and the people who care for them and support them, are core human rights concerns. Having a secure job, and an adequate and dependable source of income, is a fundamental prerequisite to the enjoyment of basic rights by all adults.

Being a valued part of the workforce also offers protection against other vulnerabilities – it provides people with a source of identity, belonging and community, with the ability to associate with others within their chosen field of work, with a source of income – thus protecting against other vulnerabilities, such as inadequate health care and homelessness and enables them to access adequate health care. We also know that it is a buffer against becoming involved in the criminal justice system. As people with disability often have

73

Only 27% of people with disability are employed full-time, compared to 53.8% of people without disability, in Australia. The rates of unemployment are also inequitable – 10% of Australians with disability, as compared with 5.3% of Australians without disability, are presently unemployed: Australian Human Rights Commission. Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability. 2016, 16. 74

In the 12 months preceding release of the report, 8.6% of Australians with disability reported that they had experienced discrimination or unfair treatment because of their disability. Discriminatory treatment is particularly prevalent among young people, with over 20% of those within the 15-24 years age category reporting discriminatory treatment: Australian Human Rights Commission. Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability. 2016, 16.

36

complex needs that may result in the heightened financial expense, the ability to earn a decent wage and to have their basic industrial rights protected is particularly important.

Case study – Australian Disability Enterprises (‘sheltered workshops’)

Despite the guarantee contained in Article 7 of the ICESCR to the enjoyment of just and favourable conditions of work (decent work), and the guarantee in Article 27 of the CRPD of the right to work and employment, on an equal basis and without discrimination, the use of the BSWAT and sheltered workshops has flourished in Australia.

QAI holds the firm view that Australian Disability Enterprises (ADEs) have not been beneficial for people with disability – they have sanctioned their oppression, exploited their vulnerability and eroded their dignity. They have helped to create a perspective that people with disability should not be employed in open employment but rather require special, separate employment for which they need only be paid a small fraction of the minimum wage. The only parties that truly benefit from ADEs are the owners who profit from the slave labour performed by the workers at ADEs.

The use of wage subsidies within open employment also adversely impacts on the value and status of people with disability in the workforce, creating the perspective that a worker with a disability is of lesser value than an equivalent worker without the disability.

All workers, including workers with disability, should be paid at a rate equal to or greater than the minimum award wage for the particular industry in which the worker is engaged. The supported wage system functions as a significant disincentive to employment for people with disability and can have the effect of demeaning and undervaluing the contribution made by people with disability to the labour market, in terms of the grossly insufficient remuneration provided and the concentration and confinement of workers to a small and undervalued sector of the labour market.

While some employers have demonstrated that they are more likely respond to incentives to employ a person with a disability and will not independently do this, reduced wages are not the answer. The imposition of mandatory quotas is far more appropriate.

In 2012, the Full Federal Court of Australia held that using the BSWAT assessment tool to determine reduced rates of pay for persons with an intellectual or cognitive disability constituted unlawful discrimination in breach of the federal laws.75 Yet the Commonwealth Government sought and was granted an exemption to the operation of the anti-discrimination laws, purportedly as a transitional arrangement pending the implementation of a new wage setting approach yet this ‘transitional arrangement’ has recently been extended by the Federal Court.

QAI acknowledges that some people whose support needs are very high and complex have utilised sheltered workshops as ‘pseudo day services’ in lieu of appropriate support packages to explore other activities in life. However, the practice of labelling such services as ‘supported employment’ is a falsehood and if necessary to the wellbeing of the service users, should be funded as a day service only. The people who have been engaged in these services for extended periods should have individualised funding that is targeting their goals articulated in their NDIS plans, be recognised for their long service to the workplace and receive entitlements that reflect their contribution.

Work, whether paid or voluntary, is a valued role that elevates the status of people within the community. For example, retirees or people committed to a cause, such as the environment, are valued volunteers. This elevated status can be highly important to a person with disability, and the work role can provide meaning and purpose to each day, bringing with it much satisfaction, informal supports and social connections. It is important,

75

Nojin v Commonwealth of Australia [2012] FCAFC 192.

37

however, that volunteers are not exploited, and kept in an unpaid role in circumstances where they should legitimately be paid for their work.

Case study:

Ellen worked for two days per week for her day support service in a volunteer (unpaid) capacity. She worked for six years in their office, reducing workload for other staff by performing simple tasks and errands for which she appeared to be highly valued. The support worker that assisted her was an employee of the same service, and funded from Ellen's government funding. The worker and her supervisors often commented how she was doing all the tasks independently and only required supervision and minimal redirection. One day Ellen asked the service if they would support her incidentally for at least one day which would allow her to use those skills for some social events.

The service refused. Ellen’s mother asked the service if they would consider paying her for her work one day per week so she could purchase additional supports for other social events. With another refusal Ellen and her mother decided that her role was not genuinely valued and Ellen left the service.

Human rights that have been adopted in domestic law

Current protections available in domestic law

There is currently ad hoc and incomplete legislative protection of human rights at a state level in Queensland and at a federal level. There are some human rights protections found in certain statutes, but they are piecemeal and not sufficiently robust or effective.

In the laws pertaining to persons with disabilities, we note the following human rights protections:

Anti-discrimination law

The anti-discrimination framework is comprised of parallel anti-discrimination legislation at both a state and federal level, between which there is presently, unfortunately, a significant degree of inconsistency.76

(a) The Anti-Discrimination Ac 1991 (Qld)

The Anti-Discrimination Act 1991 (Qld) (ADA) is the most comprehensive piece of human rights legislation in Queensland. The ADA protects persons from being treated less favourably on the basis of certain attributes, which are sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities, and association with, or relation to, a person identified on the basis of any of the above attributes.77

The anti-discrimination statutes operate to establish general human rights and social standards and are designed to secure equality by eradicating less favourable treatment or outcomes for members of marginalized groups or classes. The anti-discrimination legislation is built upon the core concepts of adverse impact and causation and prohibits both direct78

76

See for example: Viskauskas v Niland (1983) 153 CLR 280 and Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237. 77

Section 7 of the Anti-Discrimination Act 1991 (Qld). 78

Direct discrimination is based on the premise that like should be treated alike and occurs where a person is treated less favourably by reference to a comparator (a person who is in circumstances that are the same or not materially different from the aggrieved person) on the basis that they possess one or more of the proscribed characteristics (such as sex, race or impairment).

38

and indirect discrimination.79

The scope is therefore broadly directed at protecting members of vulnerable groups. The protection is limited to particular spheres of public life – broadly, these areas include:

o Work;

o Education;

o The provision of goods and services; and

o Accommodation.

(b) Federal anti-discrimination law

At a federal level, the anti-discrimination framework consists of the Australian Human Rights Commission Act 1986 (Cth), which establishes the enforcement framework by designating the Australian Human Rights Commission as a federal entity with regulatory oversight over all Commonwealth discrimination law, which is divided into four separate types of discrimination, each with its own Act.80 For people with disability, the relevant statute is the Disability Discrimination Act 1992 (Cth). This is a different approach to that taken in Queensland, where a single Act (the ADA) addresses discriminatory treatment on the basis of a range of different attributes.

This patchwork enforcement framework for Commonwealth anti-discrimination laws recently came under review; the Federal government considered a proposal to, among other things, consolidate the disparate anti-discrimination laws.81 This involved amalgamating the five existing Commonwealth anti-discrimination acts into a single comprehensive statute, making the laws clearer and more effective and streamlining the complaints procedures. The review, initiated in 2009, was stalled for a number of years at the draft discussion stage, being put on hold by the Gillard Government on the basis that the draft laws failed to strike the desired balance.82

(c) Key limitations of anti-discrimination laws

In our liberal democracy, anti-discrimination legislation is highly politically volatile. It is generally not well liked by conservatives – in its extreme, the individualistic legal perspective is heavily critical of anti-discrimination legislation, considering it an intrusion by the state into private contractual rights. Under the Howard government, the budget of the then Human Rights and Equal Opportunities Commission (now the Australian Human Rights Commission) was cut by 40%, reducing its staff by one-third. Staff of the human rights branch of the Attorney-General’s department was also reduced, from 21 to five.

QAI considers that the main problems with the anti-discrimination laws we have are:

a) The individualist approach taken

The anti-discrimination laws require individuals aggrieved by discriminatory treatment to take action to assert the violation of their rights and pursue an appropriate remedy. Both state

79

Indirect discrimination occurs where the same requirement or condition is applied, with a disparate impact on

members of a particular proscribed group, as a consequence of their membership of that particular group or class. While the focus remains on the individual complainant, indirect discrimination is aimed at acknowledging the stigmatizing effects of membership of a disadvantaged group. 80

The Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 2004 (Cth). 81

This was proposed in April 2010 as a key part of the Australian Human Rights Framework. In September 2011, a Consolidation Discussion Paper was released to initiate the formal process for consultation and law reform: see http://www.ag.gov.au/antidiscrimination; Attorney-General’s Department, Consolidation of Commonwealth Anti-Discrimination Laws: Discussion Paper, September 2011 (Commonwealth of Australia). At present, there are no clear indications of the likely changes that will result from the review. 82

See: http://www.ag.gov.au/Consultations/Pages/ConsolidationofCommonwealthanti-discriminationlaws.aspx for more information.

http://www.ag.gov.au/antidiscrimination

http://www.ag.gov.au/Consultations/Pages/ConsolidationofCommonwealthanti-discriminationlaws.aspx

39

and federal systems have adopted an individual complaints process, where receipt of a complaint alleging discriminatory treatment leads to investigation of the complaint by the relevant Commission. Traditionally, only victims have had standing to lodge a claim alleging discriminatory treatment, although the Fair Work Ombudsmen has recently been empowered to inquire into, investigate and initiate enforcement action for workplace discrimination complaints where it considers it is in the public interest.

This model is far from satisfactory. In contrast to other areas of law, where the parties are often on a level playing field in terms of their access to and ability to pay for legal advice, etc there is usually a significant disparity between the resources and bargaining power of the parties (which are usually an aggrieved person and a company or organisation) in a discrimination claim. Litigation is very expensive – the cost places it well out of the reach of many people (particularly disempowered people) – and anti-discrimination complaints can be complex and lengthy to resolve. Awareness of this is enough to deter any people from making a complaint in the first place. Sadly, these factors all work to further oppress and marginalise people from vulnerable groups.

These issues have been acknowledged and addressed to some degree. Parliament attempted to minimise power imbalance by making the first step in the determination of a claim a compulsory, confidential conciliation. The availability of this compulsory first step is why the anti-discrimination complaint process is often described as being informal and accessible. However, the requirements to identify and articulate the relevant breaches of the legislation, lodge a claim in the approved form to the appropriate body and adequately represent their case when face-to-face with their alleged perpetrator in a formal bureaucratic setting is highly threatening to many lay people, particularly disempowered persons not familiar with the law and legal system. The power balance between the parties also casts a significant shadow over conciliation negotiations.

The majority of aggrieved persons have been significantly marginalized and, as the legislation explicitly acknowledges, are members of traditionally disempowered groups who are highly vulnerable and thus less equipped than most to initiate and pursue a claim.

QAI submits that as discriminatory practices, by their very definition, only affect persons because of their membership of a particular class or group, a key requirement of any anti-discrimination system should be that claims are understood in a collective light. While the ability to lodge an individual complaint is central to protecting individual rights to equality and non-discriminatory treatment, it is also important that the collective vulnerability of certain groups in our society is properly understood. In other jurisdictions, class action has proved a vital means of challenging embedded or institutional discrimination, however the sole collective right contained in the legislation (the right to make a representative complaint) is not designed in a user-friendly way and so is not utilised.

b) The way discrimination is identified – use of the ‘comparator’ test

Discrimination laws are framed around the notion that individual differences are to be treated as irrelevant. This is also inherently problematic. This approach can entrench the significance of difference, rather than generating respect for individual difference, which a more substantive conception of equality may create.83 This perspective also fails to appreciate that the relevance of human rights and anti-discrimination law should be to enable equity, not equality.84

83

Rosemary Owens, Joellen Riley and Jill Murray, The Law of Work. 2nd

edition (Oxford University Press, 2011),

397. 84

It is appropriate here to note the important differences between the concepts of equality and equity, which are now acknowledged in our society. While equality involves treating all people equally, equity strives for fairness by treating ‘unequals unequally’ – that is, acknowledging that people are not all on a level playing field and attempting to reduce the differences in opportunity that exist. ‘Equity’ has a more far-reaching impact upon vulnerable people – particularly people with disability – as it creates scaffolding supports to assist in translating

40

The use of the comparator test is particularly problematic and further marginalizes disempowered groups. Essentially, the comparator test involves comparing likes with unlikes. Thornton explains it in this way:85

The benchmark figure is likely to be a white, Anglo-Celtic, heterosexual male who falls within acceptable parameters of physical and intellectual normalcy, who supports, at least nominally, mainstream Christian beliefs, and who fits within the middle-to-the-right of the political spectrum.

c) The focus on formal, rather than substantive equality

The anti-discrimination laws focus on formal equality, rather than substantive equality. Thornton argues that formal equality can actually promote substantive inequality.86 Gaze agrees, arguing that while overt or explicit sex discrimination has significantly diminished as a result of the introduction of the Sex Discrimination Act 1984 (Cth), it has been replaced by more ‘covert and subtle forms of discrimination which are more difficult to prove’.87 An example of this is that gender-based wage inequality continues, notwithstanding that we have formally adopted the principle of equal pay for work of equal value.88

d) The focus on negative, rather than positive or affirmative, action

Anti-discrimination laws are primarily negative – this is a further reason why they fail to recognize and address systemic discrimination. There is no general, positive duty to promote equity. This is consistent with the traditional Australian legal approach of seeking to remedy harm once it has occurred, rather than proactively seeking to prevent it. QAI submits that to achieve choice and equity for vulnerable members of our society, we need more than negative freedom and minimalist welfare support – what we need are proactive measures designed to level the playing field and to support autonomous choice. The onus should not be on vulnerable people to defend their human rights; rather, there must be widespread understanding that anyone thinking of breaching the human rights of another does so at risk to themselves.

A new approach proposed by commentators such as Collins and Hepple to supplement the doctrine of anti-discrimination law and as integral to the future of equality law, is that of social inclusion or solidarity.89 Social inclusion and solidarity are overlapping concepts. They are about integrating all members of a society in a way that enables their full participation and contribution. This would involve both positive and negative duties – for example, a requirement not to discriminate accompanied by affirmative action.

e) The lack of effective remedies or sanctions

A further problem with our anti-discrimination legislation is the lack of appropriate penalties or sanctions to enforce compliance with the law, deter breaches and compensate victims. Aside from limited examples, such as the recent empowering of the Fair Work Ombudsman to initiate and prosecute discrimination claims on behalf of individual complainants, there is no ‘big stick’. This is mainly because we require vulnerable individuals to initiate a claim

rights, such as the right to inclusive education, into practice. While equality would simply mean provision of equal support to all students, equity enables the particular support needs of students with disabilities to be addressed, so that they may participate and excel and have the same range of opportunities as their peers. QAI therefore adopts the language of equity as the core focus, particularly in any discussion of human rights for vulnerable people. 85

Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press,

1990), 1-2. 86

Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press,

1990), 15, 22. 87

Beth Gaze, ‘Twenty Years of the Sex Discrimination Act: Assessing its Achievements’, (2005) 30(1) Alternative Law Journal 3, 4-5. 88

National Wage and Equal Pay Cases (1972) 147 CAR 172. 89

Catherine Barnard, Simon Deakin, Bob Hepple and Gillian Morris (eds). The Future of Labour Law (Hart

Publishing, 2004), 213, 227.

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against their perpetrator, and have not established an enforcement agency tasked with doing this work.

Anti-discrimination law places a strong focus on settling complaints by conciliation, and the vast majority of complaints are resolved in private conciliations. The outcome is confidential. While this does have its merits in some circumstances, it means that it’s impact is quite limited – it is unhelpful as a deterrent, as a driver for altering social behavioural norms, as an impetus for the development or reform of laws or as a means by which policies and practices that create healthier, more productive communities can be developed. If the dispute doesn’t settle by agreement and is referred to the Queensland Civil and Administrative Tribunal for determination, the Tribunal can order that the perpetrator: stop doing the action that caused the complaint; pay compensation; pay interest on compensation; do something specific things to redress the loss or damage suffered; make a public or private apology or retraction; implement programs to eliminate unlawful discrimination; pay the other party’s costs; or declare an agreement is not legally binding.

The usual remedy is the award of monetary compensation (damages) to the individual complainant. The amount awarded is usually quite low, and is often eroded by the legal costs incurred in reaching this point. There is no exemplary or punitive component to the damages routinely ordered. There has been little attention paid to developing remedies that may have class-wide implications. This means that, despite its stated objectives, the aim of the anti-discrimination legislation appears to be the private resolution of interpersonal disputes and compensation of individual victims. The fact that appeals from the Tribunal are directed to a court is also unhelpful as courts are traditionally very formal and conservative. This has certainly been true for anti-discrimination cases, where judges usually take a limited and conservative approach.90 Our most superior court, the High Court, has modelled this approach, restrictively interpreting the scope of direct discrimination.91 Former High Court Justice Michael Kirby noted (in a dissenting judgment) in 2006 that the High Court has been increasingly reluctant to provide relief to claimants in the anti-discrimination jurisdiction, with no successful High Court claims in the preceding decade.92

(e) The exceptions, exclusions and exemptions narrow the scope of anti-discrimination law

The many exceptions, exclusions and exemptions contained in the ADA also narrow the scope of anti-discrimination law. Even when discrimination is proven, the escape clause of ‘unjustifiable hardship' can be used by the defence lawyers for large private schools or government departments such as Education Queensland to escape liability. Requirements that have been found to impose an ‘unjustifiable hardship’ on a school, to the extent that they were instead lawfully able to justify excluding a student with disability, have included that it was ‘disruption’ to the classroom to have a teacher’s aide take a child to the toilet twice a day in a government run school, or for a private school (which was well-resourced from its high tuition fees) to have to expend $4,000 for resources required by a student with a disability. Anti-discrimination law is thus often considered a blunt tool to help people who have experienced discrimination.

In the context of this understanding of the limits of anti-discrimination law, it is perhaps unsurprising that anti-discrimination law has not provided an effective remedy for the use of Restrictive Practices (RPs), despite the highly arguable case that the use of RPs breaches anti-discrimination law. This is particularly so in the context of an understanding of the vulnerability and disempowerment inherent in the experience of an intellectual or cognitive

90

See for example Waters v Public Transport Corp (1993) 173 CLR 49 at 372; Purvis (2003) 217 CLR 92 at [202]

– [203]. Note that tribunals have on occasion developed remedies designed to prevent further discrimination (eg Bellamy v McTavish & Pine Rivers Shire Council [2003] QADT 15; Simpaon v Boyson & Belli Park Stud Pty Ltd

[2003] QADT 19) yet this is rare. 91

Purvis v New South Wales (Dept of Education and Training) (2003) 217 CLR 92. 92

New South Wales v Amery (2006), above n 149 [86] – [88], discussed by Creighton and Stewart, above n 22,

556-7.

42

disability, both for the person and their family.

Anti-discrimination laws have had a mild normative effect in influencing the general social acceptance of overt discrimination – a ‘consciousness raising effect’93 – and have provided some individuals with a means of redressing grievances that flow from discriminatory treatment. However, overall anti-discrimination laws have proved ineffective at challenging systemic and ingrained discrimination.

Case study – discrimination in education

For an example of the way in which the weaknesses of our anti-discrimination laws have resulted in negative outcomes for vulnerable members of our society, we need look no further than the treatment of students with disability. Children with disability have historically been subjected to overt discrimination and segregation, separated from their peers, shunted into ‘special’ schools, units and classes according to coding of their disability ‘type’ and denied adequate and appropriate support and learning opportunities (see QPPD’s “Small Choices in Rotten Apples” for further discussion of these issues).

Even where state government departments have been challenged and have been found to have discriminated, they have not been made to alter their practice in a way that results in positive outcomes for students with disability. The escape clause provided by the legislation of ‘unjustifiable hardship’ is too easily available and consequently often abused by state government departments in circumstances where they should be compelled to respond, not only to individual cases of discrimination but in implementing systemic change that will improve the situation for all students. Improvements in educational policy and practice for students with disability has benefits for the students in their educational journey and helps to protect against students with disability ultimately ending up requiring exorbitant funding packages as adults because they have been excluded from the educational system during their developmental years and denied appropriate learning and engagement opportunities.

Guardianship law

The legal guardianship regime in most Western societies, including Australia, provides decision-making mechanisms for adults with intellectual disabilities.94 In Queensland, the Guardianship and Administration Act 2000 (Qld) (GAA) contains a comprehensive regime governing the appointment of guardians for persons with impaired capacity.95

In Queensland, approximately 2,300 people are subject to guardianship and administration orders at any time.96 The purpose of the GAA, as expressly stipulated by the Act, is to achieve balance between the right of an adult with impaired capacity to the ‘greatest possible degree of autonomy in decision-making’ and their right to ‘adequate and appropriate support for decision-making’.97 The GAA also expressly recognises some of the human rights proclaimed in the CPRD, including the right to equal recognition before the law proscribed by Article 12 (see section 6 of the GAA), the right to liberty and security of the person in Article 14 (see Chapter 5B, Part 2 of the GAA) and the right to health in Article 25 (see Chapter 1, Part 2, which sets out the way in which general principles and the healthcare principle are to be applied).

93

Sandra Berns, Women Going Backwards: Law and Change in a Family Unfriendly Society (Ashgate, 2003), 76. 94

Shih-Ning Then, ‘Evolution and Innovation in Guardianship Laws: Assisted Decision-Making’ (2013) 35 Sydney Law Review 133, 133. 95

See Guardianship and Administration Act 2000 (Qld), Ch 3. 96

As at 30 June 2015, there were just over 2,300 guardianship clients of the Adult Guardian: Office of the Adult Guardian (Queensland) Annual Report 2014-2015. 97

Guardianship and Administration Act 2000 (Qld), s 6.

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In reality, the human rights of a person facing a guardianship order are often given little or no consideration.

This is particularly so in the making of an interim order or when a hospital or service provider makes an application for the appointment of a guardian or administrator. It is during these times that the General Principles contained in the Guardianship and Administration Act 2000

(Qld) are often overlooked or not considered and so the individual’s human rights fail to be enlivened. Furthermore, if a person does not have a support person or advocate or if they cannot attend the hearing, the Tribunal members will often only hear the version presented by the applicant for the order and will not consider the person’s rights.

Paradoxically, the General Principles can serve both as a sword and a shield to the recognition of human rights. This is evident when entities (both government and non-government) give a weighting to the separate principles so that one is seen as more important than the other. For instance, some statutory bodies consider Principle 10 – Appropriate to the circumstances as being more important than Principal 2 – Same human rights. As a result, the decision-making process is skewed to the statutory body’s objective, not necessary that of the individual. In QAI’s experience references to human rights which is in the GAA and General Principals are not operative, but merely declaratory in effect.

QCAT hearings appear to be influenced by the tribunal member’s ideology and the fact that guardianship grew from and remains part of a paternalistic system. In reality this means that it is difficult to anticipate with any accuracy any outcome even if the factual scenarios are similar. Whilst some members will focus on the individual as autonomous and endeavour to uphold their rights, others succumb to the competing obligation to protect that individual. A Human Rights Act would ensure that the individual’s rights are upheld more robustly than currently occurs.

The Disability Services Act 2006 (Qld)

The Disability Services Act 2006 (Qld) is meant to acknowledge and safeguard the rights of people with disability, promote their inclusion in the community, ensure they have choice and control in accessing services and that the services they receive are safe, accountable and responsive to their needs.98 The DSA is built around the principle that people with disability have the same human rights as others and that regard must be had to the human rights of adults subjected to Restrictive Practices, with section 18 providing as follows:

Principle that people with a disability have the same human rights as others

(1) People with a disability have the same human rights as other members of society and should be empowered to exercise their rights.

(2) People with a disability have the right to— (a) respect for their human worth and dignity as individuals; and (b) realise their individual capacities for physical, social, emotional, cultural,

religious and intellectual development; and (c) live lives free from abuse, neglect or exploitation; and (d) participate actively in decisions affecting their lives, including the development

of disability policies, programs and services; and (e) recognition of their individual autonomy and independence, including the

freedom to exercise choice and have control of their lives. (3) When using disability services people with a disability have the right to—

(a) services supporting their achieving quality of life in a way that supports their family unit and their full participation in society; and

(b) receive services in a way that results in the minimum restriction of their rights and opportunities; and

98

Disability Services Act 2006 (Qld), s 6.

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(c) receive services in a way that respects the confidentiality of their information; and

(d) receive services in a safe, accessible built environment appropriate to their needs; and

(e) pursue grievances about services without fear of the services being discontinued or recrimination from service providers; and

(f) support to enable them to pursue grievances about services; and (g) support, and access to information, to enable them to participate in decisions

affecting their lives. (4) People with a disability have the right to receive services, and information

necessary to support rights, in ways that are appropriate having regard to their disabilities and cultural backgrounds.

(5) Subsections (2), (3) and (4) do not limit subsection (1).

This reflects a number of core human rights as recognised by the UN human rights conventions, including the right to freedom from exploitation, violence and abuse (Article 16 of the CRPD), integrity of the person (Article 17 of the CRPD), the right to live independently and be included in the community (Article 19 of the CRPD), the right to habilitation and rehabilitation (Article 26 of the CRPD) and the right to participate in cultural life, recreation, leisure and sport (Article 30 of the CRPD).

A key problem with this legislation (that is not unique to the DSA) is that the drafting of the legislation insofar as human rights principles are concerned is declaratory only – there are no operative provisions that translate this broad statement into practice, nor are any of the other human rights contained in the CRPD, or more generally in international law, recognised or incorporated.99

This is a significant practical hurdle. However, it illustrates the general approach taken by Parliament to human rights (not only in disability-specific areas, but generally): we support human rights in theory and will happily state it, but we will not accompany this declaration of support with any concrete measures that mean that human rights are actually respected or protected in practice.

When the DSA was recently amended, the stated purpose was to protect persons with an intellectual or cognitive impairment who are subject to the DSA because they receive support services funded under the Act, by regulating the use of RPs on these adults by their Service Providers. However, QAI has extensive firsthand knowledge and experience that in practice, the DSA has been used to sanction the largely unfettered application of Restrictive Practices and to provide immunity to service providers for actions that, but for the Restrictive Practices legislation, would be considered false imprisonment or assault in breach of our criminal laws.

The DSA was recently amended, by the Disability Services and Other Legislation Amendment Bill 2015 (Qld), with the amendments primarily aimed at ensuring consistency with the NDIS. QAI made a detailed submission to the review. Some of the core concerns we hold with this legislation relate to the premature and inappropriate shunting of people with disability into aged care settings. This is obviously highly problematic in itself, as it is well recognised that the environment of an aged care home is not an appropriate environment for a younger person with disability. That this practice continues despite the existence of the NDIS and the Joint Action Plan (which is also designed to align with the NDIS) is very concerning, and represents an infringement of the human rights of these people. Aside from the accommodation itself, there are further issues of concern with this practice.

99

Phillip French, ‘Human Rights and Human Wrongs: A Human Rights Analysis of Queensland Restrictive Practices Legislation’, Presentation to Queensland Advocacy Incorporated’s Restrictive Practices Forum, 24 August 2010, 9.

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The deaths of people with disability in aged care settings are not subject to investigation by the Coroner unless specifically requested. This is a significant omission, as in many situations it masks incidents of violence, abuse and neglect of a person with disability and protects the service provider from investigation and prosecution.

Further, the invisibility and vulnerability of people with disability in aged care institutions is further entrenched by the fact that the Community Visitor Program does not visit these sites. Therefore, service providers may not be held to account for the application of Restrictive Practices on vulnerable people with disability.

The procedures prescribed by the DSA include assessments and the development and approval of positive behaviour support plans – which is only to be given where it is shown that the RP is necessary and the ‘least restrictive way’ of achieving the desired goal. The new amendments also provide time-limited immunity from criminal and civil liability for services providers implementing Restrictive Practices, provided they acted honestly and without negligence, where there are delays in deciding an approval or consent.100 This is a broad protection that essentially authorises actions that would otherwise amount to a contravention of the criminal law (for example, false imprisonment, assault). Prior to the introduction of the immunity provision, service providers were adequately protected by the common law doctrine of necessity and by workplace health and safety legislation. In none of these scenarios have the human rights of the people subjected to RPs been respected – the only human rights are those on paper only; the acknowledgement and inclusion of these human rights in the DSA has not translated to any improvement of the experience of people with disability. The rights are not real, or enforceable.

The Mental Health Act 2000 (Qld)

The Mental Health Act 2000 (Qld) also expressly incorporates some core human rights in its provisions. Part 3 of the MHA prescribes the principles for administration of the MHA, with section 8 providing as follows:

General principles for administration of Act

(1) The following principles apply to the administration of this Act in relation to a person who has a mental illness—

a. Same human rights: the right of all persons to the same basic human rights must be recognised and taken into account a person's right to respect for his or her human worth and dignity as an individual must be recognised and taken into account

b. Matters to be considered in making decisions

to the greatest extent practicable, a person is to be encouraged to take part in making decisions affecting the person's life, especially decisions about treatment

to the greatest extent practicable, in making a decision about a person, the person's views and the effect on his or her family or carers are to be taken into account

a person is presumed to have capacity to make decisions about the person's assessment, treatment and choosing of an allied person

c. Provision of support and information

100

See s 189 Disability Services Act 2006 (Qld).

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to the greatest extent practicable, a person is to be provided with necessary support and information to enable the person to exercise rights under this Act, including, for example, facilitating access to independent help to represent the person's point of view

d. Achievement of maximum potential and self-reliance

to the greatest extent practicable, a person is to be helped to achieve maximum physical, social, psychological and emotional potential, quality of life and self-reliance

e. Acknowledgement of needs a person's age-related, gender-related, religious, cultural, language, communication and other special needs must be taken into account

f. Maintenance of supportive relationships and community participation

the importance of a person's continued participation in community life and maintaining existing supportive relationships are to be taken into account to the greatest extent practicable, including, for example, by treatment in the community in which the person lives

g. Maintenance of environment and values to the greatest extent practicable, a person's cultural and linguistic environment, and set of values (including religious beliefs) must be maintained

h. Provision of treatment Treatment provided under this Act must be administered to a person who has a mental illness only if it is appropriate to promote and maintain the person's mental health and wellbeing

i. Confidentiality

a person's right to confidentiality of information about the person must be recognised and taken into account.

The MHA has recently been reviewed. A new MHA (the Mental Health Act 2016 (Qld)) was

passed by the state government on 18 February 2016, but has not yet come into operation – the most recent update anticipated that the new MHA will commence on 5 March 2017. The new Act contains a number of improvements, simplifying and improving certain practices and procedures and giving increased recognition and strength to the role of support people and families.

While QAI commends the Queensland government for the improvements pending in this area, we are cautious about the likely impact of the new Act. Like any legislative change, the changes in this area will only be successful if the government also commits adequate funding and expertise and embraces an appropriate mindset and commitment to the new paradigm. This is particularly important given the implementation challenges that have already been faced in transitioning towards the new model. Whether this will occur is yet to be seen.

The Forensic Disability Act 2011 (Qld)

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Certain core provisions of the CRPD also find expression in the Forensic Disability Act 2011 (Qld). For example, Chapter 1, Part 3 of the FDA sets out, as general principles of the Act, the promotion of habilitation and rehabilitiation, which resonates with the human rights contained in Article 26 of the CRPD (the right to habilitation and rehabilitiation).

Chapter 6, Part 1 of the FDA commences by proclaiming that the purpose of the chapter is to protect the rights of forensic disability clients by regulating the use of behaviour control medication, restraint and seclusion.

However, notwithstanding these proclamations, there are presently significant problems with forensic disability in Queensland, and in Australia. These are discussed above, in the context of indefinite detention.

Discussion points:

A commonly discussed solution to addressing the deficits in statutory human rights protection in Queensland, and Australia, is the amendment of existing legislation. Do you think this is a reasonable proposal? QAI has favoured the approach of introducing a Human Rights Act over the introduction of a collection of amending Acts, for reasons of simplicity, completeness and the impact that the introduction of a Human Rights Act has in making a statement about the value of human rights in Queensland and Australia. In addition to a Human Rights Act, we think there is a need for a Disability Justice Plan to safeguard the human rights of people with disability.

How can we hold decision-makers more accountable for human rights breaches?

Conclusion on the effectiveness of current laws and mechanisms for protecting human rights in Queensland

Queensland is uniquely vulnerable, as compared with other Australian states and territories, due to our unicameral system of government. This lack of an upper house, or house of review, means that the power of the government of the day is largely unrestrained. This is not just an abstract possibility – Queenslanders have witnessed the abuse of power by a government during the recent reign of the Newman Government in Queensland. Many of these abuses directly impacted on the human rights of the most marginalised and disempowered Queenslanders – for example, interference with the autonomy of the judiciary; voter ID laws; the abolition of measures designed to protect vulnerable people in their interface with the criminal justice system, including the Special Circumstances Court of Brisbane; the removal of human rights-based protections in laws regulating the use of Restrictive Practices by service providers on people with disability; the passage of the VLAD laws; and the introduction of juvenile justice measures including the naming and shaming of children in public and the removal of natural justice for parents in the educational system to appeal short term suspensions of students.

Key weaknesses in the human rights framework

The limitation of rights

The human rights conventions expressly recognise that not all human rights and freedoms are absolute and permits the imposition of some restrictions, in strictly regulated circumstances.

For example, the UDHR expressly acknowledges that some of the human rights and freedoms proclaimed by it may be subject to certain limitations. This is strictly regulated – the limitations must be:

as determined by law; and

solely for the purpose of securing due recognition of the rights and freedoms of

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others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.101

Similarly, the ICESCR also permits some – strictly regulated – limitations:

where authorised by law;

only insofar as it is compatible with the nature of the rights; and

solely to promote the general welfare in a democratic society.102

Unlike the UDHR and the ICESCR, the ICCPR does not contain a general restrictions clause by which the rights and freedoms protected in the convention may be overridden or weakened, save for the provision for a State to limit or suspend the enjoyment of certain rights in cases of officially proclaimed emergencies ‘which threaten the life of the nation’, as reported to the United Nations and subject to the exclusion of certain absolute rights (such as the right to freedom from discrimination on the grounds of race, colour, sex, language, religion or social origin). However, some of the Articles of the ICCPR contain provision allowing for limitation within the Article itself, again only where prescribed by law and as necessary to protect national security, public order or the rights and freedoms of others.

It is recognised that some human rights are absolute and cannot be alienated, restricted, suspended or limited in any way, even in times of emergency. The types of rights that fall within this category are the rights:

to life; to freedom from torture; to freedom from enslavement or servitude; to protection from imprisonment for debt; to freedom from retroactive penal laws; to equal recognition before the law; and to freedom of thought, conscience and religion.

There is a view that it is necessary that not all human rights are absolute and that they must be subject to qualification in some circumstances. We consider that, in the cases of highly vulnerable groups such as persons with disability, it is appropriate that certain rights be considered absolute, even where the rights may not have an inalienable status for all people. To allow reductions and exceptions to human rights that are fundamental to the ability of a person with disability to have an ordinary, inclusive life challenges the validity of the entire human rights framework. The human rights protections provided by international humanitarian law could be strengthened if this caveat was added to the text of the relevant conventions.

Limited jurisprudence

Some conventions, such as the CERD and the CRPD, establish an individual complaints mechanism. This can give rise to a (usually quite limited) jurisprudence on the interpretation and implementation of the relevant convention and can at times result in a proclamation being embraced as a principle of customary international law (for example, the absolute prohibition against torture, cruel, inhuman or degrading treatment or punishment proclaimed in the CAT).

However, the individual complaints mechanisms process is not incorporated into all, or most, of the conventions. Further, for the significant majority of people – particularly the most vulnerable and marginalised who are, ironically, those most likely to need access to an individual human rights complaints mechanism– it is not reasonable or practicable to expect them to pursue a remedy through this avenue. There are a number of reasons for this, such as the unfamiliarity and perceived remoteness of international legal institutions, the usual

101

See Article 4. 102

See Article 4.

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requirement that the person has exhausted all domestic remedies before pursuing this avenue (which is a very costly, time consuming and exhausting process) and the realistic appraisal that, even if successful, the remedies are not sufficient to compensate the person for the human rights breach or the process required to pursue it. It is important to note that many people with disability and their families who are attempting to access justice are not seeking the payment of financial compensation. Rather, what they are seeking is acknowledgement of their rights, amendments to laws, policies and practices that discriminate against them and reinstatement of rights that have been violated.

Difficulties translating rights into practice

A further barrier to the full translation of the human rights proclaimed in the different UN treaties and conventions into practice are some gaps in knowledge and understanding about how to do this in practice. While the Conventions all articulate strong visions of equality and rights protections, in certain areas (including mental health and mental capacity law in particular) there can be different views about how to give practical effect to these visions.103 This is noted to be the case with aspects of the CRPD, in particular, with how to achieve the paradigm shift required by the CRPD. Some scholars note the lack of prescriptive measures provided by the CRPD with respect to how to transform to a supported decision-making paradigm, and argue that the desired outcome is difficult to achieve given that the nature of the safeguards required suggests that the measures are likely extensive.104

French and associates outline intersecting reasons that are typically proposed to account for this problem:105

1. The invisibility of persons with disability within human rights discourse (it is argued that there has been a failure to substantially recognize persons with disability as right-bearers, and a tendency to view the needs and concerns of persons with disability in terms of social development and population health rather than in terms of human rights);

2. The somewhat abstract and general nature of the traditional formulation of some key human rights has created difficulties in the application of these rights with certainty to specific violations more likely to be, or uniquely, experienced by persons with disability; and

3. A lack of disability-related experience and expertise in human rights protection and implementation agencies.

They note that these problems have been particularly acute in relation to persons with cognitive impairment who engage in behaviours of concern.106

QAI takes the perspective that while a paradigm shift is obviously required by the CRPD, this is long over due. While academics and officials are struggling to grapple with the means of safeguarding while respecting the human rights of people with disability, at all levels respect for the will and preference of the person should be the first and foremost consideration, provided that they have all the information, guidance and support necessary to make the decision. Anything that interferes with this final decision should be subject to scrutiny and review. The CRPD seeks to ensure that all people with disability will enjoy the same rights as everyone else where possible. In the decision-making realm, some people with disability may need support to do so. In circumstances where there is a decision which a person clearly cannot make, the substituted decision-making model supersedes the supported

103

See P Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’ (2012) 75(5) Modern Law Review 752 for a discussion of this issue. 104

See G Richardson, ‘Mental Disabilities and the Law: From Substitute to Supported Decision-Making?’ (2012) 65(1) Current Legal Problems 333. 105

Phillip French, Jeffrey Chan and Rod Carracher, “Realizing Human Rights in Clinical Practice and Service Delivery to Persons with Cognitive Impairment who Engage in Behaviours of Concern” (2010) 17(2) Psychiatry, Psychology and Law 245, 245-6. 106

Ibid.

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decision-making model in that instance only. This approach to decision-making is, from QAI’s perspective, far preferable to applying the ‘best interests’ approach – a substitute decision-maker should be in a position to know what the person would decide if they had capacity; a decision purportedly made in the ‘best interests’ of a person can be made by a person who doesn’t even know the person and thus would be unlikely to be able to gauge what their preference would be. The QAI Human Rights Indicators for the CRPD is a useful tool for all laws, policies and practices that encompass government at all levels, as well as business and the community.

Areas where the CRPD stands alone

In some areas, the CRPD has entered new territory in the recognition of human rights that have not previously been proclaimed, whether for a particular group (such as people with disability) or generally.

Rights specific to the CRPD are as follows:

the right to accessibility, including information technology; the right to live independently and be included in the community (Article 19); the right to personal mobility (Article 20); the right to habilitation and rehabilitation (Article 26).

The introduction of the NDIS in Australia has generated much speculation on the impact this scheme will have on the human rights and lives of people with disabilities. In essence, the NDIS was introduced as a means of expanding and standardizing the financial support available to Australians with disability. The move towards individual funding schemes with the roll-out of the NDIS has been welcomed by many as a means of respecting the human rights of people with disability, including the right to choice with respect to the services they receive and from whom, and elevating the citizenship status of people with disability.107 Yet as Dickinson notes, ‘human rights protection and market-driven consumer systems are unlikely bedfellows,’ concluding:108

As we have long known, people do not live their lives according to the sort of silos that we typically use to organise government services. The reality is that people with disabilities tend to experience most starkly any failures to collaborate across government agencies and programs. Given its focus, the NDIS is unable to fully address these issues, and without significant change will struggle to fully realise human rights for people with disabilities.

The NDIS, as it stands today, has been constructed differently to the aspirations and hopes of people with disability, the proponents of the NDIS and the Productivity Commission. Some core concerns with the NDIS, from a human rights perspective, are as follows:

many people with disability will be ineligible for an NDIS funding package;

the only ‘choices’ supported by the NDIS will be mainstream choices that align with the National Disability Strategy vision – more creative choices that depart from traditional care service patterns may not be supported;

the NDIS does not address structural inequality;

the NDIS does not challenge broader barriers to inclusion, nor does it provide funding for many of the types of services and programs that offer pathways to

107

Helen Dickinson, ‘Will the NDIS and individualisation of disability services enhance human rights?’ Right Now, 22 February 2016. 108

Helen Dickinson, ‘Will the NDIS and individualisation of disability services enhance human rights?’ Right Now,

22 February 2016.

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greater inclusion.109

Measuring impact

It is recognised that the impact of an international treaty can be measured by its acceptance and by its implementation.110 The domestic implementation of many of the UN human rights conventions is patchy and incomplete and this is a significant barrier to the success of the international human rights law framework.

Further, the reporting requirements imposed by the conventions are often flagrantly ignored; even where a report is submitted, the recommendations issued by the relevant Committee on review of a country’s report often go un-implemented.

There are no ways to compel a country to sign or ratify a convention, although factors such as international trade, image and reputation certainly play a role. There are also no sanctions for failure to implement a treaty in domestic law that are sufficient to compel a country to take positive action. In this way, international human rights law is a largely toothless tiger. As the following case study shows, abusive treatment of our most vulnerable by those in positions of power is symptomatic of the current lack of regard for human rights, disrespect for the UN and the Conventions to which Australia is party, and impervious nonchalance for our international reputation that presently pervades Australian culture.

Case Study:

QAI was disturbed and dismayed by the recent, highly abusive and inhumane treatment of a vulnerable Indigenous youth within a youth detention centre. Our concern was amplified by the fact that the story of Dylan Voller, the youth brutally abused at the Don Dale Youth Detention Centre in the Northern Territory, is not just a tragic aberration brought about by the action of one violent guard. Rather, Dylan’s story resonates with the experiences of many, many other marginalised and disempowered Australians in their experience of violent and abusive treatment.

In Australia, we not only condone but actively sanction the use of Restrictive Practices on vulnerable people with disability. QAI considers that the use of Restrictive Practices constitutes torture and contravenes Articles 15 and 16 of the Convention on the Rights of Persons with Disabilities (CRPD), which guarantee persons with disability freedom from torture or cruel, inhuman or degrading treatment or punishment and from exploitation, violence and abuse. QAI also considers that these practices constitute torture in breach of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Australia has signed and ratified both the CRPD and the CAT yet has, to date, failed to properly implement and respect these treaties in Australian laws and practices.

When QAI appeared before the United Nations in November 2014 as part of the Australian NGO Delegation reporting to the 53rd session of the United Nation’s Committee Against Torture in Geneva, we successfully sought the UN’s support for our call to the Australian Government to take immediate steps to halt ongoing human rights abuses in Australia. At issue was the treatment of some of Australia’s most vulnerable and marginalised people, including people with disabilities, asylum seekers, women, children and Indigenous peoples. Yet nearly two years on, despite persistent campaigning by advocates, we are yet to see positive change and leadership in this area. The advent of the Don Dale incident is evidence of this inertia.

These practices are sadly not unique to the Northern Territory. The excessive and largely

109

Helen Dickinson, ‘Will the NDIS and individualisation of disability services enhance human rights?’ Right Now, 22 February 2016. 110

Lérner, Natán (1980). The U.N. Convention on the Elimination of All Forms of Racial Discrimination. Sijthoff & Noordhoff International. p. 1.

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unmonitored use of Restrictive Practices in Queensland positions us poorly when compared with many of our neighbouring jurisdictions. Within the past decade in Queensland, Government-funded service providers have employed former police and prison staff who have utilised devices and practices including handcuffs, physical holds and restraints and excessive force upon vulnerable people with disability.

The atrocities at Don Dale were completely preventable. Yet without strong human rights leadership, they will continue to be replicated throughout Australia. Australia is presently an outlier in our lack of basic human rights protection.

Discussion points:

How can we strengthen the international legal jurisdiction? What is the role of international opinion and sanctions in compelling decision-makers

within a country to heed international legal norms? What kind of grass roots action can prompt compliance with international

humanitarian law? In Australia we have seen examples where social movements have heralded significant, positive change. For example, the One Punch Can Kill’ campaign, Rosie Batty’s leadership in the area of domestic violence, and the movement towards same sex marriage all drew a broad and varied support base and made a significant positive impact. What are the core ingredients needed to build a successful grass roots movement to protect the human rights of people with disability?

Recommendations

1. Comprehensive legislative protection of human rights

The most important means of translating fundamental human rights protection from being non-binding and recommendatory in nature to operating as a protective safeguard of the basic rights of vulnerable groups is through the implementation of a federal human rights act or charter.

If it can be said that there is a dominant Queensland, and Australian, cultural ethos, it is typically defined by reference to core values including a ‘fair go’, freedom, egalitarianism, mateship and community spirit. Yet these values are in sharp contrast with capitalism, which places strong emphasis on individual choice. This is the belief that individuals are all equally free to choose from the many goods and opportunities society has to offer, and the related assumption that any hardships they may face can be attributed to their failure to make ‘good’ choices. While Australia does incorporate aspects of a welfare state, there is a concerning lack of general protection for the more vulnerable members of our society – the communal safety net is a basic string net which fails to cushion, or indeed catch, many of our most vulnerable.

In recent decades, we have seen increasing cutbacks to the welfare safety net, which has had profound, negative repercussions for vulnerable people in our society. This is particularly so given our lack of proper human rights protection, in the form of a bill or charter of human rights that protects the basic rights of all Australians.

Two Australian jurisdictions have enacted human rights acts or charters – the Australian Capital Territory, in 2004, and Victoria, in 2006. In Queensland, a reactive, ‘putting out fires’ approach to addressing the most egregious cases of human rights abuses (which is highly dependent on the whim of the political party of the day) has resulted in an unfinished patchwork of legislative protection of human rights, which is not only incomplete but inconsistent. This is particularly concerning as Queensland is alone in having a unicameral system of government (lack of an upper house). QAI has been part of the campaign for a meaningful Human Rights Act in Queensland and is gratified by the recent announcement

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that the Queensland Labor State Policy Platform will be amended to include a commitment to introduce a Human Rights Act in Queensland.

Introduction of a federal Human Rights Act would be an important step towards implementation of Australia’s obligations under the UN human rights conventions.

2. The development of human rights indicators

As an interim measure, QAI proposes the development of human rights indicators to protect vulnerable people in key areas.

QAI developed and published the Human Rights Indicators for People with Disability: A Resource for Disability Activists and Policy Makers (the Human Rights Indicators). The Human Rights Indicators set out a preliminary set of human rights indicators for persons with disability, which are based on the elements of the CRPD. It is both a reference that describes the human rights of people with disability, and a tool for measuring the extent to which those rights have been met. Numerous entities, including government departments and NGO’s, have adopted the Human Rights Indicators as the standard against which they measure their efforts to promote the rights of people with disability. The World Bank requested permission to include it in its Inter-Agency Disability Knowledge Sharing System, a web-based disability toolkit for UN Agencies and public entities.

QAI recently applied for a grant to develop a set of Human Rights Indicators for the Use of Restrictive Practices on vulnerable people with disability that would be universally applicable (not only applicable to funded service providers). Such a tool would undoubtedly result in fewer applications for the use of RPs and provide an educational tool for families that may employ RPs unwittingly or without intent, or consciously, with good intentions but with a lack of awareness of the enormity of the power they wield and how they are harming and demeaning the person they want to support. While the development of these indicators would be beneficial in that it would increase the protection afforded these vulnerable people, to have an impact akin to a blanket protection of basic human rights, Human Rights Indicators would need to be developed for every context in which vulnerable people are routinely stripped of their autonomy or their human rights. This is impractical and is another reason why there is a pressing need for a Human Rights Act in Australia.

3. Implementation of all international conventions in Australian legislation

UN conventions and treaties are not binding within the laws of Australia unless specifically included in Australian state or federal legislation. It is therefore vital that the Australian Government enact domestic legislation that implements the obligations which it has agreed to respect and protect. In the absence of this step, and in the absence of effective international enforcement mechanisms, the conventions are unenforceable and offer no concrete protection against human rights violations.

In Australia, the CRPD is already referred to in state and federal legislation. However, at times the references can be incongruent with the intent and provisions of the CRPD. A clear example of this can be seen in the case of the indefinite detention of persons with an intellectual or cognitive impairment within the Forensic Disability Service Unit in Queensland (discussed above). This is purported to be within the context of the CRPD human rights framework yet is in practice counter to the aims and intent of the CRPD. Clear and accurate translation of our obligations as signatories to each of the human rights treaties would help to guard against the practice of utilising these treaties to justify government-sanctioned action that is directly contrary to both the spirit and intent of the relevant UN convention.

4. Ensuring successful follow-up of UN recommendations

To ensure that UN recommendations do not simply get filed away and forgotten, or ignored as being irrelevant to Australia, it is important that successful follow-up action is taken. This

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has a number of key components:

1. Ensuring the public is aware of the existence of the obligations, and of any relevant UN recommendations specific to Australia; and engaging with the public in debate and discussion around key issues. International law is often seen as an abstract and theoretical concept that is largely irrelevant to Australia. This is a false assumption that must be challenged and dismantled;

2. Ensuring relevant institutions are also aware of the obligations and recommendations, and of their potential role in respecting the obligations and actioning the recommendations;

3. Lobbying relevant Government Ministers and politicians to take action within their portfolios and areas of coverage and to put pressure within caucus for action by the Government;

4. Judges can incorporate relevant UN Recommendations, Concluding Observations and Views of treaty bodies to help determine the just outcome in a particular case. It is important for human rights lawyers to bring these recommendations and observations to the court’s attention in relevant cases, generating awareness of them by the judiciary and hopefully persuading the judge to incorporate them into Australian case law. It is possible for lawyers to do this not only when representing a party to a proceeding, but as a special interest intervenor or friend of the court in a matter in the public interest. This latter option significantly broadens the scope for community legal organisations and NGOs to become involved in cases impacting on the human rights of vulnerable groups, such as persons with disability.

5. Ratification of OPCAT

In Australia, there have been increasing calls for the federal Government to ratify the Optional Protocol to the Convention Against Torture. Australia signed the OPCAT on 19 May 2009 yet has failed to give it teeth by ratifying it.

Ratification of the OPCAT would commit Australia to establishing National Preventive Mechanisms (NPMs) to prevent torture and other forms of cruel, inhuman or degrading treatment or punishment falling short of torture. In practice, what this means is that Australia would be committed to opening up all places of detention in Australia, as well as relevant offshore locations (primarily military and immigration detention facilities), to inspection and to establishing inspection facilities for these institutions. The types of institutions are many and varied, and include prisons, juvenile detention institutions, police stations, locked psychiatric wards and immigration detention centres, as well as prisoner transport, court security, military detention facilities and aged care hostels – all institutions where residents are detained involuntarily.

QAI strongly supports the call for ratification of the OPCAT as an urgent priority.

Conclusion

The intersection of the international human rights treaties in core areas strengthens, rather than detracts from, the human rights that overlap. The proclamation of fundamental human rights in a variety of international human rights treaties demonstrates the widespread importance of these rights for all people, everywhere. Some of these rights are then tailored to a particular vulnerable group – this is the work of the CRPD for people with disabilities.

Many of the human rights treaties, including the CRPD, remain measured to some degree against the human rights yardstick that is the UDHR, which remains unique in applying to all humans irrespective of their country of residence and whether that country has signed or ratified other human rights instruments. As the initial, authoritative statement of the importance of respecting human rights, it continues to be the benchmark for humanity’s common means of defining core human values and dignities. The UDHR has been strengthened by the conventions that have followed it, which have provided a lawful basis to

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assert key human rights at the international level.

French and associates assert:111

Although human rights in their original formulation have always applied to persons with disability on the same basis as they have applied to others, in reality these rights have largely failed to penetrate to the principal sites of human rights violation experienced by persons with disability. Even where human rights discourse and practice have penetrated to some degree, it is strongly arguable that implementation efforts have not been sufficiently precise, or sufficiently potent, to enliven the full beneficial content of key human rights.

It is well recognised that paradigmatic shifts are initially accompanied by disbelief and resistance,112 then following by acceptance and incorporation as a cultural norm. Research also shows us the potential for changes in law to powerfully impact upon mindsets in a particular area. In the context of the international humanitarian reforms brought about by the CRPD, Lord and Stein explain:113

Human rights norms have power to work change through non-legal mechanisms.... [They] trigger belief changes by providing information to societies about the human rights ideas with the attendant effect of serving as educational tools for altering social mores.

It is time for the Australian Government to initiate this paradigm shift, and begin the process of formalising and normalising human rights protection that should have been commenced long ago.

111

Phillip French, Jeffrey Chan and Rod Carracher, “Realizing Human Rights in Clinical Practice and Service Delivery to Persons with Cognitive Impairment who Engage in Behaviours of Concern” (2010) 17(2) Psychiatry, Psychology and Law 245, 245. 112

Kristen Booth Glen, ‘Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship and Beyond’ (2012-2013) 44 Columbia Human Rights Law Review 93, 99. 113

Janet E Lord & Michael Ashley Stein, ‘The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities’ (2008) 83 Washington Law Review 449, 474-75.

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Reference List

International treaties/conventions:

1. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT). 2. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 3. Convention on the Elimination of All Forms of Racial Discrimination (CERD) 4. Convention on the Rights of Persons with Disabilities (CRPD) 5. Convention on the Rights of the Child (CRC) 6. International Covenant on Civil and Political Rights (ICESCR) 7. International Covenant on Economic, Social and Cultural Rights (ICCPR) (and two

Optional Protocols) 8. Universal Declaration of Human Rights (UDHR)

Legislation:

1. Anti-Discrimination Act 1991 (Qld)

2. Australian Human Rights Commission Act 1986 (Cth)

3. Disability Discrimination Act 1992 (Cth)

4. Disability Services Act 2006 (Qld)

5. Forensic Disability Act 2011 (Qld)

6. Guardianship and Administration Act 2000 (Qld)

7. Mental Health Act 2000 (Qld)

8. National Disability Insurance Scheme Act 2013 (Cth)

Secondary sources:

1. Allan, Sonia, 2012, ‘Gatekeeping parenthood: Should the state play a role in determining eligibility criteria for assisted reproductive treatment?’ Family Law Review 2 Fam L Rev

149

2. Australian Human Rights Commission. Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability. 2016

3. Barnard, Catherine, Simon Deakin, Bob Hepple and Gillian Morris (eds). The Future of Labour Law (Hart Publishing, 2004).

4. Bartlett P, 2012, "The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law" 75(5) Modern Law Review 752

5. Bell, Sylvia, 1998 ‘Rationing the right to health’ Journal of Law and Medicine 6 JLM 83

6. Berns, Sandra, Women Going Backwards: Law and Change in a Family Unfriendly Society (Ashgate, 2003).

7. Dickinson, Helen, ‘Will the NDIS and individualisation of disability services enhance human rights?’ Right Now, 22 February 2016.

8. French, Phillip, ‘Human Rights and Human Wrongs: A Human Rights Analysis of Queensland Restrictive Practices Legislation’, Presentation to Queensland Advocacy Incorporated’s Restrictive Practices Forum, 24 August 2010.

9. French, Phillip, Jeffrey Chan and Rod Carracher, “Realizing Human Rights in Clinical Practice and Service Delivery to Persons with Cognitive Impairment who Engage in Behaviours of Concern” (2010) 17(2) Psychiatry, Psychology and Law 245.

57

10. Gaze, Beth, ‘Twenty Years of the Sex Discrimination Act: Assessing its Achievements’, (2005) 30(1) Alternative Law Journal 3.

11. Glen, Kristen Booth, ‘Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship and Beyond’ (2012-2013) 44 Columbia Human Rights Law Review 93.

12. Gooding, P, "Supported Decision-Making: A Rights-Based Disability Concept and its Implications for Mental Health Law" (2013) (20)(3) Psychiatry, Psychology and Law 431

13. Lérner, Natán (1980). The U.N. Convention on the Elimination of All Forms of Racial Discrimination. Sijthoff & Noordhoff International.

14. Lord, Janet E & Michael Ashley Stein, ‘The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities’ (2008) 83 Washington Law Review 449.

15. McSherry, Bernadette, 2008 ‘Legal issues: The United Nations Convention on the Rights of Persons with Disabilities’ Journal of Law and Medicine 16 JLM 17

16. McSherry, B. 2012. ‘The Involuntary Detention of People with Intellectual Disabilities.’ Right Now: Human Rights in Australia.

17. Nicholson, Hon Justice R D, 1995, ‘Waving the magic wand: solving key legal issues relating to intellectual disability’, Journal of Law and Medicine 2 JLM 270.

18. O'Brien, Paula, 2013, ‘The international right to health: State obligations and private actors in the health care system’ Journal of Law and Medicine 21 JLM 194

19. Owens, Rosemary, Joellen Riley and Jill Murray, The Law of Work. 2nd edition (Oxford University Press, 2011), 397.

20. Parker, Malcolm, 2013, ‘Bioethical issues: Forced sterilisation: Clarifying and challenging intuitions and models’ Journal of Law and Medicine 20 JLM 512.

21. Purser, Kelly and Tuly Rosenfeld, 2015, ‘Assessing testamentary and decision-making capacity: Approaches and models’ Journal of Law and Medicine 23 JLM 121.

22. Richardson G, 2012, "Mental Disabilities and the Law: From Substitute to Supported Decision-Making?" 65(1) Current Legal Problems 333

23. Rickard, Chan and Merriman, 2013 ‘Issues Emanating From the Implementation of Policies on Restraint Use With People With Intellectual Disabilities’ Journal of Policy and Practice in Intellectual Disabilities 10(3): 252-259.

24. Ridley, James and Serena Jones, (2012) ‘Clamping down on the use of restrictive practices’ Learning Disability Practice 15.2: 33-36.

25. Then, Shih-Ning, ‘Evolution and Innovation in Guardianship Laws: Assisted Decision-Making’ (2013) 35 Sydney Law Review 133

26. Thornton, Margaret, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, 1990).

27. Webber, Lynne S., Keith R. McVilly and Jeffrey Chan, (2011) ‘Restrictive Interventions for people with a Disability Exhibiting Challenging Behaviours: Analysis of a Population Database’ Journal of Applied Research in Intellectual Disabilities 24: 495-507.

58

Annexure 1

Comparative table outlining human rights common to different UN human rights treaties/conventions

Convention of the

Rights of Person with Disabilities

(CRPD)

Conventions/Treaties containing similar rights relevant to disability

ICCPR ICESCR CRC CEDAW CERD CAT

Article 5 Equality and non-discrimination

Article 2.2 Article 3

Article 2 Article 2 Article 5

Article 6 Women with Disabilities

Article 10.2

Article 2, 3, 4

Article 7 Children with disabilities

Article 24

Article 10.3

Article 8 Awareness raising

Article 9 Accessibility

Article 5(f)

Article 10 Right to life

Article

6.1

Article 11 Situations of risk and humanitarian emergencies

Article 4

Article 12 Equal Recognition before the law

Articles 16, 26

Article 3, 15

Article 5(a)

Article 12 Access to

Article 14

Article 5(a)

http://www.un.org/disabilities/convention/conventionfull.shtml






http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf

http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx

http://www.ohchr.org/Documents/ProfessionalInterest/cat.pdf

59

justice

Article 14 Liberty and security of the person

Articles 9, 10

Article 5.1


Article 5(b)

Article 15 Freedom from torture and cruel, inhuman or degrading treatment or punishment

Article 7, Article 10

Article 2.2 Article 9,37,39

Article 1 (definition of term “torture”), Article 16

Article 16 Freedom from exploitation, violence and abuse

Article 9,32,36,37,39

Article 6 Article 2.1

Article 17 Protecting the integrity of the person

Article 5(b)

Article 18 Liberty of movement and nationality

Article 12

Article 9 Article 5(d)(i)-(iii)

Article 19 Living independently and being included in the community

Article 20 Personal mobility

Article 10

Article 21 Freedom of expression and opinion,

Article 2.2

Article 10.1,10.2,13.1,14, 17

Article 5(d)(vii), (viii)

60

and access to information

Article 22 Respect for privacy

Article 17

Article 23 Respect for home and the family

Article 23

Article 10.1

Article 5,8, 21

Article 13.1, 16

Article 24 Education

Article 13, 14

Article 28,29

Article 10 Article 5(e)(v)

Article 25 Health

Article 11.2, 12

Article 3,17, 24,25,

Article 12 Article 5(e)(iv)

Article 26 Habilitation and rehabilitation

Article 27 Work and employment


Article 11 Article 5(e)(i)

Article 28 Adequate standard of living and social protection

Article 11.1

Article 27

Article 29 Participation in political and public life

Article 25

Article 1.1

Article 7 Article 7, 8

Article 5(c)

Article 30 Participation in cultural life, recreation, leisure and sport

Article 27

Article 15.1(a)

Article 17, 18.3, 30, 31

Article 13.3

Article 5(e)(vi)

61

Annexure 2

Comparative table outlining Australian legislation implementing certain human rights established by the UN Conventions

Convention of the Rights

of Person with

Disabilities (CRPD)

Conventions/Treaties containing similar rights relevant to disability

Disability Services Act 2006 (Qld) (DSA)

Forensic Disability Act 2011 (Qld) (FDA)

Guardian and Administration Act 2000 (Qld) (GAA)

Mental Health Act 2000 (Qld) (MHA)

Article 5 Equality and non-discrimination

Part 3, s8(1)(a) Same human rights

Article 6 Women with Disabilities

Article 7 Children with disabilities

Article 9 Accessibility

Article 10 Right to life

Article 11 Situations of risk and humanitarian emergencies

Article 12 Equal Recognition before the law

Part 2, Div 1, s 18 Principle that people with a disability have the same human rights as others

Ch 2, s 6 Balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making & their right to support for

https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/D/DisabServA06.pdf




https://www.legislation.qld.gov.au/LEGISLTN/ACTS/2011/11AC013.pdf




https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/G/GuardAdminA00.pdf




https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/M/MentalHealthA00.pdf



62

decision making

Article 12 Access to justice

Article 14 Liberty and security of the person

Chapter 6, Part 1 s 42 Purpose of chapter is to protect the rights of forensic disability clients by regulating the use of behaviour control medication, restraint and seclusion

Chapter 5B, Part 2 Containment or seclusion approvals → Div 2, s 80Y Period of containment or seclusion approval

Article 15 Freedom from torture and cruel, inhuman or degrading treatment or punishment

Article 16 Freedom from exploitation, violence and abuse

Article 17 Protecting the integrity of the person

Article 18 Liberty of movement and nationality

Article 19 Pt 2, Div 1,

63

Living independently and being included in the community

S 27 Inclusion in the community

Article 20 Personal mobility

Article 21 Freedom of expression and opinion, and access to information

Part 3, s8 (1)(b) s45

Article 22 Respect for privacy

Chapter 5B, Pt 6, s 80ZT Informal decision-makers must maintain confidentiality Chapter 7, Pt 1, s114A Publication about proceeding that discloses adult’s identity Chapter 9, Pt 1, s 210B Offence to publish confidential information Chapter 11, Pt 5, s 249A Prohibited use of confidential information

Part 3, s8(1)(i) Confidentiality must be recognised and taken into account

Article 23 Respect for home and the family

Article 24 Education

64

Article 25 Health

Ch 1, Pt 2, s 11 Application of general principles and healthcare principle Ch 5, Pt 1, s 61 Ch 5, Pt 4, s 79 Offence to carry out health care unless authorised

Part 3, s8 (1)(e) Acknowledgement of needs (1)(h) treatment of those with a mental illness only permitted if it will promote and maintain the persons mental health and wellbeing

Article 26 Habilitation and rehabilitation

Pt 2, Div 1, S 18(3)

Chapter 1, Part 3 s 7(b) General principles - promoting habilitation and rehabilitation Chapter 2, Part 1 ss 15, 15 Individual development plans and promotion of habilitation and rehabilitation principles

Article 27 Work and employment

Article 28 Adequate standard of living and social protection

Article 29 Participation in political and public life

Article 30 Pt 2, Div 1, Part 3, s8(1)(e):

65

Participation in cultural life, recreation, leisure and sport

s18(2)(b) People with a disability have the right to realise their individual capacities for physical, social, emotional, cultural, religious and intellectual development (= Art 30.2 CPRD)

acknowledgement of needs; cultural Part 3, s8(1)(g) maintain a persons cultural environment (including religious beliefs)