ࡱ> TVSM Z>bjbj== .XWW9M l $ 000Dbbb8 $DY'2&&&&&&&$( *&0& 00' |00& &  .$00& @2P̓Dbh @%&)'0Y'%6+ +& DD0000The DDA as a Tool for Change - The International Perspective Paper presented to a Summit for Peak Disability Organisations convened by the Human Rights and Equal Opportunity Commission on 4 and 5 December 2001 Phillip French Introductory Observations: It is a great mistake to view the elimination of socially undesirable discrimination on the ground of disability, and the realisation of the human rights of people with disability as the same thing. Even on the most positive view, the former is only a subset of the latter. From a more critical perspective, the quest for liberal equality through anti-discrimination law may have little to do with human rights. The DDA is not a Bill of Rights, nor does it deal in any other fundamental sense with the human rights people with disability, although in some instances it can be an important means for the recognition and attainment of human rights. I am sure most of us gathered at this summit know this, and yet our collective conduct over the last ten years may suggest that we have yet to truly understand it. Our human rights efforts and expectations have in many respects become so focused around the DDA that one could be forgiven for thinking that the DDA provided the last word on the human rights of people with disability in Australia. Yet the human rights of people with disability involve far more than the mere attainment of liberal equality. We must resist the reductivist tendency to equate the elimination of socially undesirable discrimination on the ground of disability with the attainment of human rights for people with disability. The human rights of people with disability in Australia are in many cases yet to be articulated, let alone recognised, still less attained. If we really have, or want, a human rights agenda for people with disability in Australia, we must understand that there are some places that the DDA will not, and cannot be made, to go. We must come to a mature understanding that the DDA is merely a tool for change in some areas, and renew and redouble our efforts to articulate a broader platform for human rights activism around disability in Australia. There are many reasons why this must be done, and in the brief time available, I note just some of the more obvious of these: Our propensity to see the DDA as all encompassing of the human rights of people with disability is leading to disappointment, in some cases bitter disappointment, when it fails to deliver against these expectations. We can never judge the DDA a success if we continue to measure it against aspirational expectations it cannot possibly satisfy. The administration and adjudication of the DDA will struggle to deliver liberal equality in many cases, let alone human rights. Anti-discrimination law is very poorly adapted to dealing with human rights issues that arise in the specialist service area. On one view of the law, specialist services are in any event, special measures, and as such are outside the scope of anti-discrimination law. But whether this is the appropriate legal conclusion or not, the issues facing people with disability in the specialist service system rarely take on the character of discrimination in the liberal legal sense of that word. Indeed, in so far as they involve abuse and neglect, there are strong public policy grounds why they ought not. It is largely (although not exclusively) people with severe disability that occupy the specialist service system, so the result is that many people with the most severe disability (in particular people with severe intellectual disability, brain injury, physical disability, and psychiatric disability) will never gain much benefit from the DDA in terms of the issues that dominate their day-to-day lives. Some of the most serious human rights issues confronting people with disability in Australia have been specifically excluded from the jurisdiction of the DDA. This includes, for example, migration law and policy, which explicitly and deliberately discriminates against people with disability by denying entry to Australia, or where entry is permitted, denying or delaying access to programs and services. Finally (though far from exhaustively so) I note that the leadership of the disability rights movement in Australia is, in large measure anyway, gathered at this Summit. If the leadership of the movement is not able to articulate and activate a national disability human rights agenda beyond the DDA, then it is most unlikely that anyone else will do so. Articulating and activating a national disability human rights agenda will no doubt be difficult in our current political environment, but it must be done. Having proposed the general goal of a national disability human rights agenda beyond the DDA, I now want to focus specifically on disability rights in the international arena. In the time available, I will focus on just two concerns: That which I perceive in the Australian disability rights movement (generally speaking) as a lack of awareness of, and engagement in, the disability rights movement at the international level. What I see as the importance of the development of an international Convention on the Rights of People with Disability to bring a new and more intense focus to the human rights of people with disability. Engagement in the International Arena I am concerned that there appears to be a low level of consciousness of international human rights law, policy and activism on disability and human rights in the Australian disability rights movement. Like all generalisations there will be instances where that observation is incorrect, but it is a proposition that I do think is worth reflecting on. I suspect that the vast majority of people with disability in Australia know little if anything about international human rights instruments relevant to issues affecting people with disability, including many disability advocacy organisations. I am not aware of any organised effort, based in the movement (or anywhere else) for raising awareness about these instruments or how they might be used in framing or buttressing advocacy on behalf of people with disability at the domestic level. Of particular concern is the apparently low consciousness of the Standard Rules. I suspect that the vast majority of people with disability in Australia know little if anything about the Standard Rules. Would it make any difference if they did? In my view it would. Although international human rights instruments are difficult to apply in any direct sense at the domestic level, they do provide an important conceptual and practical framework for domestic action. They portray people with disability as right-bearers, and this can have an important emboldening effect. They represent an international norm against which domestic policy may be compared and contrasted to gain leverage. And in some instances they do, in fact, also provide an avenue of recourse to address problems for which there may be no domestic remedy. As a corollary to the apparent lack of awareness of international human rights law, policy and activism, is the lack of engagement with it. In this respect I highlight the following: In the last year the United Nations has convened the World Summit on Racism and is currently preparing for the Special Session on 鱨վ (delayed from September 2001). There are many very serious issues affecting adults and children with disability in Australia that ought to be agitated in fora such as this, but both have passed largely unnoticed. Although Australian Government and non-Government representatives attended(propose to attend) both conferences, I am unaware of any attendance from within the (non-Government) Australian disability rights movement. Certainly, there has been no effort within the (non-Government) disability rights movement to caucus a position that might be presented in such fora. Over the last few years Australia has been examined by United Nations Committees on its compliance with a number of international treaty obligations, including its compliance with the Convention on the Rights of the Child and the Convention on Economic, Social and Cultural Rights. In examining a States performance, the UN Committee takes evidence not only from the State Party, but also from appropriate non-Government organisations with an interest in the issue. The treaty obligations contained in these two conventions are of fundamental importance to people with disability. It is therefore disappointing that there has been no broad based submission dealing with disability issues presented to either examining Committee (I do acknowledge the work to by some legal centres and other organisations to highlight some issues, particularly with respect to discrimination against people with disability through another major non-Government submission). Some impairment-based peaks such as Blind Citizens Australia, Australian Association of the Deaf, and National Council on Intellectual Disability are members of impairment based international associations, which have standing in relation to UN organisations. I have no direct knowledge of the degree to which these links are used to influence issues in the international arena from an Australian perspective. However, since the demise of Disabled Peoples International (Australia) in 1994, Australia has not had membership of DPI and its degree of engagement in the international disability rights movement at this level has substantially diminished. Some individuals continue to attend DPI fora, but in large measure this participation is personal rather than representative, and does not indicate an engagement by the broad base of Australian disability rights movement. Our lack of engagement with the international disability rights movement is regrettable for a number of reasons, and I highlight only two: Such engagement is an important source of exchange of ideas and talent that we can ill afford to forgo. We have much to learn from the international disability rights movement that can be put to the advantage of people with disability in Australia. The international disability rights movement is also, potentially, an important strategic source of support to crack those domestic disability rights issues that have become intractable. We have a social responsibility to do so. As one of the worlds wealthiest countries it is appropriate that we bear our own weight in the development of international law, policy and activism around disability issues from which we ultimately will benefit. Australia ought to have a role in the formulation and development of international human rights norms around disability issues. This is particularly so in an increasingly globalised economy where international human rights law is one of the only legal and ethical constraints on economic interests that may have a profound impact on the lives of people with disability. An International Convention on Disability: There are now a number of international human rights instruments dealing with disability. They include: the Declaration on the Rights of Mentally Retarded Persons (1971); 159 International Labor Organisation Convention on Vocational Rehabilitation and Employment (Disabled Persons) of 1983; the Declaration on the Rights of the Disabled (1984); the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (1991); the Standard Rules for the Equalisation of Opportunities for Persons with Disabilities (1993). Additionally, disability issues arise, or have the potential to arise, in many other international human rights instruments; for example, Article 23 of the Convention on the Rights of the Child; and the principle of non-discrimination that is applied in the assessment of compliance with obligations under the Convention on Economic, Social and Cultural Rights. However, there is no International Convention on the Rights of People with Disability, and in my view this ought to be a major priority for us all at the international level. There are a number of reasons why an International Convention on Disability ought to be a priority, and again, I have time to list only two: Many of the provisions of existing international human rights instruments on disability are outmoded and embarrassing. It is high time that international human rights law concerning disability is modernised. Although the Standard Rules do achieve this to a significant degree, they are of relatively low status in the hierarchy of international instruments. Given the very specific and profound human rights issues faced by people with disability it is appropriate that there is a statement of our rights at the highest level. As already highlighted, in an increasingly globalised economy, international human rights instruments are one of the only legal and ethical constraints on international economic interests, and it is desirable that these constraints be as powerful in substance and stature as possible. Ten years ago the UN General Assembly rejected proposals for a Convention on the Rights of People with Disability. That rejection was a bitter disappointment, but efforts have continued within the international movement to realise this objective. In late October this year the Government of Mexico sought the support of the General Assembly of the United Nations for the elaboration of an International Convention on the Rights of People with Disability. It is important that Australia lends its full support to this initiative, both on the floor of the Assembly, and in the development of the Convention that hopefully is to follow. Concluding Remarks: To summarise, in this brief paper I have called for the articulation of a national agenda for the human rights of people with disability, in which the DDA is viewed as an important tool for change, but not as the embodiment of the human rights of people with disability in Australia. I have also called for a greater degree of awareness and engagement in international law, policy and activism from within the Australian disability rights movement. In particular, I have identified the elaboration of an International Convention on the Rights of People with Disability as an important goal towards which we ought to work. If we are to pursue and achieve objectives such as these, it is my view that we require better structures and processes for relating to each other as movement, for relating to our national government, and for relating to the international community. I appreciate that this final remark may take us into controversial territory, however, the issue cannot reasonably be avoided in an important reflective event such as this one. Thank you.  Executive Officer, People with Disabilities (NSW) Inc; BA(Hons) LLB(Hons)  PAGE 7 = /6/99=>K>L>M>S>T>U>V>Z>0JmHnHu0J j0JU5\j0JOJQJU^J OJQJ^J=> z { 34`h^h  & F h^h $&dPa$$a$=L>Y>`adePQXQ R "###&&N*O***  & F h^h  & F h^h  & F h^h*,, / /5/6/224444B7C79999===K>L>W>X>$a$  & F h^h  & F h^hX>Y>Z>,1h. 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