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					The Task force:




Australian Federati on of
                            Submission to the
Disability Organis ations
                            National Disability Strategy




                            From the UN CRPD
                            Ratification Taskforce



                            Supported by ACOSS

Queensland Advocacy
    Incorporated


                            Endorsed by:
                            Disability Council of NSW
                            Western Australia Ministerial
                            Disability Advisory Council
Supported by:
                            Disability Advocacy Service, NT




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   1. Introduction

The UN CRPD Ratification Taskforce (the Taskforce) welcomes the Australian
Government’s decision to commence development of a National Disability Strategy.

We strongly endorse the Government decision to base the National Disability
Strategy on the UN Convention on the Rights of Persons with Disabilities (the UN
Convention). The Taskforce members welcomed the speedy ratification of the
Convention in July this year.

The UN Convention provides a clear framework for the changes that are needed to
make sure that the human rights of people with disability in Australia are protected,
respected and fulfilled. It also gives us the opportunity to improve our knowledge
about how well Australia is currently complying with its obligations.

The Taskforce sees the development of the National Disability Strategy as the
avenue for the strategic implementation of the UN Convention. This submission
provides practical recommendations to achieve this.


   2. About the Taskforce

The UN CRPD Ratification Taskforce was first convened in June 2007 following a
major national meeting on the ratification and implementation of the Convention,
auspiced by the Australian Human Rights Commission (then the Human Rights and
Equal Opportunity Commission). The role of the Taskforce was to campaign for swift
ratification of the UN Convention. The Taskforce includes representatives from the
Australian Federation of Disability Organisations, People with Disability Australia,
Queensland Advocacy Incorporated, the National Association of Community Legal
Centres and the secretariat of the state and territory disability advisory councils.

In 2008, the Taskforce undertook a project looking at the Impact of Ratification of the
UN Convention on the Rights of People with Disability in Australia on behalf of the
Australian Government. Section 7 of the project report included a number of
recommendations about the implementation of the UN Convention that are relevant
to the National Disability Strategy. These are reproduced at Appendix A.

      Recommendation 1
      That the recommendations contained in the Taskforce Report of consultations
      about the impact of ratification of the UN Convention be considered in the
      development of the National Disability Strategy.

Following the ratification of the Convention on 18 July this year, the Taskforce turned
its attention to the implementation of the Convention. With support from the
Australian Human Rights Commission and the Australian Council of Social Services,
the Taskforce held a full day workshop on 13 November to begin work to develop a
framework for the National Disability Strategy based on the UN Convention. This
submission is based on the outcomes of that workshop.


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    3. Australia’s Obligations under the UN Convention

Under international law, Australia has three levels of obligation in relation to the
human rights that are outlined in the UN Convention: it must respect the rights of
people with disability, protect the rights of people with disability, and fulfil the rights of
people with disability.

Respecting human rights requires Australia to ensure that the rights of people with
disability are not violated and that the State does not interfere with a person’s ability
to exercise or realise their rights. Australia must also eliminate laws, policies and
practices that are contrary to human rights.

Protecting human rights requires the Government to ensure that non-state actors,
including individuals, private enterprises and social institutions, do not violate or
otherwise interfere with an individual’s exercise or realisation of their human rights.

Fulfilling human rights requires Australia to take positive action to ensure that all
people with disability can exercise and realise their human rights. This includes the
adoption of laws and policies that promote and protect human rights, the
development of social institutions, programs and other measures to implement these
rights, and the allocation of the resources necessary for these measures to be
effective. 1

The National Disability Strategy should include measures related to each level of
Australia’s obligations.


    4. The UN Convention and the National Disability Strategy

Australia’s ratification of the UN Convention on the Rights of Persons with
Disabilities does not mean that Australia already fully complies with it in practice.
People with disability continue to face discrimination and significant systemic barriers
to full inclusion and participation i n Australian communities and the social, economic
and cultural life of the nation.

Under the International Covenant on Civil and Political Rights, Australia must ensure
that the civil and political rights of people with disability are immediately respected,
protected and fulfilled. The Taskforce is aware that there is substantial work to be
done in this area. There is also a great deal of work that needs to be done to ensure
that the economic, social and cultural rights of people with disability are respected,
protected and fulfilled.

The National Disability Strategy gives us the opportunity to translate the UN
Convention into an action plan that is relevant to Australia.



1
  Adapted from Impacts in Australia of Ratification of the United Nations Convention on the Rights of
Persons with Disabilities: Back ground paper for Roundtables for Australian disabled peoples
organisations (2008), prepared by Phillip French and the Disability Studies and Research Institute.

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       Recommendation 2
       That the National Disability Strategy should be based on the UN Convention
       on the Rights of Persons with Disabilities.

Work to turn the UN Convention obligations into practical actions that could be
included in a National Disability Strategy has already commenced. This year the
Human Rights Indicators for People with Disability resource was developed by
Queensland Advocacy Incorporated through an extensive process of research and
consultation. This resource provides a valuable starting point for turning the UN
Convention into strategies that can be developed, adopted and monitored in
Australia. See Section 7 for examples.


   5. Commonwealth, State and Territory Government Cooperation
      in the Development of the National Disability Strategy

The Taskforce notes that the Commonwealth Government is committed to
developing the National Disability Strategy in co-operation with State and Territory
Governments and will work with them to develop a monitoring and reporting
framework. Many areas of policy, programs, services, law and regulation relevant to
the rights of people with disability are administered partly or wholly by State and
Territory Governments.

However, the Commonwealth Government is responsible for ensuring Australia’s
compliance with its international responsibilities, and so has a particular opportunity
and responsibility to provide leadership in all areas of the implementation of the
Convention.

This includes:
      assisting State and Territory Governments to develop strategies to ensure
       that they fully respect, protect and fulfil the rights of people with disability as
       recognised in the Convention; and,
      ensuring accountability and effectiveness through the development of
       monitoring and reporting arrangements for these strategies.

Below are recommended strategies that can be pursued by the Commonwealth.

       Recommendation 3

       To ensure that the needs of people with disability are considered in relation to
       all mainstream policy areas, and to promote Commonwealth-State/Territory
       co-operation, the National Disability Strategy should require each joint
       committee of national, state and territory ministers to conduct an audit of
       Convention compliance and to develop an action plan to progress all issues
       identified. The committees should take into account the Human Rights
       Indicators for People with Disability resource, developed by Queensland
       Advocacy Incorporated.

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Recommendation 4

Joint ministerial committees should give priority to assessing the compliance
against the Convention of all National frameworks and strategies. For
example, the National Community Crime Prevention Programme, the Plan to
Reduce Violence against Women and Children and the National Child
Protection Framework.

Recommendation 5

The National Disability Strategy should include a commitment to achieving
equitable outcomes for priority population groups inc luding women with
disability, Aboriginal people with disability and people from culturally and
linguistically diverse backgrounds with disability.

Recommendation 6

The National Disability Strategy should include significantly enhanced
resourcing for disability representative, legal and advocacy organisations to
participate in the development and monitoring of implementation actions
through an integrated and coordinated approach. This is especially important
given that people with disability often experience the cumulative effects of
more than one form of violation against their rights. Services which are able to
provide a variety of services such as legal, support and advocacy assistance
are better able to ensure all the rights of people with disability are protected.
This includes resourcing the sector to participate in the development of
Australia’s comprehensive report against the Convention.

Recommendation 7

The National Disability Strategy should include a commitment for each
Commonwealth Department and agency to develop a disability strategy based
on the Convention that addresses each Department and agency’s specific
responsibilities and also those issues that are common to all agencies,
including:

      employment practices, and small business creation and assistance
       where relevant, including targets for opportunity and participation by
       people with disability;
      accessible premises;
      accessible communications;
      accessible procurement; and,
      effective consultation with people with disability.




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       Recommendation 8

       The National Disability Strategy should also include the same commitment
       from each State and Territory on behalf of its Departments and agencies.

       Recommendation 9

       The National Disability Strategy should establish a National Office of Policy
       Coordination based in the Office of Prime Minister and Cabinet with the
       authority to ensure co-ordination across Government. The role of this body
       would be to work in consultation with government bodies and disability
       representative, legal and advocacy organisations and advisory bodies to:
             Identify actions needed under the Convention that are cross-
              departmental;
             Promote information about effective strategies across jurisdictions and
              to local government, the private sector and other organisations;
             Co-ordinate the development of Australia’s initial comprehensive report
              on its compliance with the Convention (due by August 2010); and,
             Co-ordinate an ongoing process of feedback between reporting under
              the Convention and the further development of the National Disability
              Strategy and measures for implementation of the Strategy in all areas.


   6. Immediate Goals, Medium Term Strategies and Reporting

As the matters covered by the Convention and therefore the National Disability
Strategy are broad, it is unlikely that even with the extensive consultations currently
being undertaken by the Federal Government we will know by early 2009 everything
we need to know in order to develop comprehensive strategies for implementation of
the Convention. This is particularly the case in relation to the development of
indicators and targets for full and (where relevant) interim compliance with the
Convention and the measures that need to be adopted to achieve these targets.

In addition, a number of relevant policy and program reviews of critical importance
are currently being undertaken by the Federal Government that will not report for
some months. This includes the tax system review chaired by Dr Ken Henry, the
review of the Transport Standards by Allen Consulting, and the pensions and welfare
review chaired by Dr Jeff Harmer. In other areas covered by the Convention, it
appears that broad policy and programme reviews will be needed.

       Recommendation 10
       That the National Disability Strategy is progressively reviewed and revised
       every 3 years to account for the findings of strategic audits, research,
       improvements in best practice and consultations with people with disability
       and their representative organisations.



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Notwithstanding this, a National Disability Strategy that is finalised in early 2009 can
contain meaningful commitments, including:

      The adoption of the recommendations included in this submission, and
      A commitment to address any and all measures identified in the course of the
       current consultation process that are required by the Convention and are
       capable of immediate action.

       Recommendation 11

       That the Government commit to addressing all measures identified in the
       course of the consultation undertaken for the National Disability Strategy that
       are required by the UN Convention and are capable of immediate action.

It is essential that the National Disability Strategy has a clear performance
framework. The Taskforce supports the recommendation made by the Disability
Advocacy Network Australia in its submission to the National Disability Strategy for
the establishment of a clear performance framework that:

       explicitly identifies strategic policy objectives, strategic operational structure,
       operational implementation measures, operational objectives for each
       measure, explicit measurable performance targets for each implementation
       measure; performance indicators for each implementation measure;
       assignment of a specific lead agency or sponsor and inter- or intra-
       governmental coordination mechanisms if required; an evaluation strategy
       based on a rigorous, transparent methodology.

       Recommendation 12
       That the National Disability Strategy include a clear performance framework,
       as outlined by the Disability Advocacy Network Australia.


   7. Putting the Convention into Practice through the National
      Disability Strategy: Examples

Below are some examples of how Australia’s commitments under the UN
Convention can be operationalised through the National Disability Strategy. These
examples draw on the indicators work undertaken by Queensland Advocacy
Incorporated. The examples are illustrative and are not intended to be a
comprehensive assessment of Australia’s progress against the selected Articles or of
the strategies available to implement the Convention.




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UN Convention Article 13: Access to Justice

Some key elements of the Article:
   Effective access to justice
   Procedural and age-appropriate accommodations in all legal proceedings
     including at investigation and preliminary stages
   Appropriate training for justice agency personnel including police and prison
     staff

Possible indicators of progress:
    People with disability enjoy effective access to justice at all stages of the legal
      process
    Procedural accommodations are made to ensure effective participation of
      people with disability in the justice system
    Appropriate training is provided to all justice agency personnel

Current violations and/or issues:
    People with disability, particularly those with cognitive or intellectual disability
      are over-represented in the criminal justice system
    Complaints-based processes for addressing disability discrimination are
      onerous for people with disability and legal services are under-resourced
    Police need greater training in responding to people who have disability

Implementation mechanisms:
    Standing Committee of Attorneys-General
    Ministerial Council on the Administration of Justice
    National Judicial College
    National Police Academy
    Legal Aid
    National Disability Discrimination Legal Services
    National Disability Advocacy Programme


UN Convention Article 28: Adequate standard of living and social protection

Some key elements of the Article:
   Assistance with disability-related expenses
   Access to public housing programmes
   Adequate standard of living for people with disability and their families

Possible indicators of progress:
    People with disability and their families living in situations of poverty have
      access to assistance with disability-related expenses
    People with disability enjoy continuous improvement in living conditions
      without discrimination on the ground of disability
    People with disability have access to public housing programmes




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Current violations and/or issues:
    People with disability experience high rates of poverty and deprivation
    There are low levels of accessibility of public housing stock, particularly social
      housing
    People with disability experience high rates of unmet need for disability
      related aids and equipment

Implementation mechanisms:
    Community and Disability Services Ministers’ Conference
    Housing Ministers’ Conference
    The Harmer Review
    Australian Building Codes Board


UN Convention Article 29: Participation in political and public life

Some key elements of the Article:
   Enjoyment of political rights on an equal basis with others
   Voting procedures, facilities and materials are appropriate and accessible
   Active participation in public affairs through non-government organisations,
     political parties and representative disabled people’s organisations

Possible indicators of progress:
    Voting procedures, facilities and materials are accessible to people with
      disability
    Participation of people with disability in public affairs is encouraged
    People with disability are encouraged to form and join organisations of people
      with disability to represent them at the international, national, regional and
      local levels

Current violations and/or issues:
    People with disability have poor access to information about political and civil
      affairs
    Inaccessible voting mechanisms mean that some people with disability are
      unable to cast independent, secret ballots
    Polling booths are located in inaccessible venues
    Government advisory committees are not representative of people with
      disability, for example the Federal Government’s Social Inclusion Board

Implementation mechanisms:
    Joint Standing Committee on Electoral Matters
    Australian Electoral Commission




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                                                                           Appendix A

Extract from the Final Report of the Consultations with Australian representative
organisations governed by persons with disability, disability advisory councils, and
the disability legal services network on the impact of ratification of the Convention on
the Rights of Persons with Disabilities


7.     National implementation and monitoring measures

7.1    Informants were asked to identify the key CRPD implementation measures
       that should accompany (that is, immediately follow) Australia’s ratification:

       Incorporation into Australian law

7.2    Informants were unanimous in the view that it is essential that the CRPD is
       directly and comprehensively incorporated into Australian law. It was noted
       that while the Disability Discrimination Act, 1992 and the Disability Services
       Act, 1986 and their state and territory counterparts might be said to
       incorporate some major elements of the CRPD, they certainly do not
       incorporate all elements, nor do existing provisions cover all elements of
       those rights that are incorporated in part.

7.3    It was proposed that the most appropriate and effective means of direct
       incorporation of the CRPD is as a schedule to a national Bill of Rights,
       provided that such a Bill of Rights is supported by robust enforcement and
       monitoring mechanisms that extend to the CRPD, and which would provide
       for:

          Justiciability of both civil and political and economic, social and cultural
           rights;

          Accessible individual and representative complaint procedures with
           effective remedies for human rights violations, including injunctive relief
           and fair compensation;

          Capacity for HREOC to intervene in proceedings in which CRPD rights are
           agitated, or ought to be agitated;

          Capacity for HREOC to initiate own motion prosecutions in relation to
           CRPD right violations;

          Capacity for HREOC at its own motion to develop, issue and monitor
           guidelines and standards for compliance with CRPD rights;

          Statements of compatibility with CRPD rights to be prepared for all
           proposed legislation and all existing legislation undergoing review and
           amendment;



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         Parliamentary scrutiny of all Bills to ensure their compatibility with CRPD
          rights;

         Interpretation of all laws, whether statutory or at common law or in equity,
          by Courts and Tribunal in a manner that will further CRPD rights;

         It to be unlawful for a public authority or official to act in a way that is
          incompatible with a CRPD right or, in making a decision, to fail to give
          proper consideration to a relevant human right. Such conduct ought also
          to be subject to administrative review;

         All public authorities and non-state actors providing goods and services to
          the public to develop action plans to ensure their basic compliance with,
          and where applicable, the progressive realisation of CRPD rights. HREOC
          ought to be provided with compulsory powers to direct that an action plan
          be developed, to reject or require the amendment of an action plan, and to
          monitor compliance with an action plan;

         All public procurement of goods and services must be compatible with,
          and further, CRPD rights;

         Broad standing provisions that would allow disability representative and
          advocacy bodies to bring public interest based proceedings to enforce
          CRPD rights.

      National audit of laws, policies and programs

7.4   It has been noted that informants did not identify any fundamental
      inconsistency between CRPD obligations and Australian laws, polices and
      programs that would prevent Australia from moving to immediately ratify the
      CRPD. However, it has also been noted that informants made it clear that
      this was far from equivalent to concluding that CRPD rights are fully realised
      in Australian laws, policies and programs.

7.5   Informants highlighted many sub-optimal laws, policies and programs that
      would require review and development so as to ensure the full realisation of
      CRPD rights in the Australian context. Informants also highlighted many
      areas of non-compliance with existing Australian laws that purport to
      recognise and protect the human rights of persons with disability.

7.6   Major areas of concern included:

         Disability discrimination law – particularly with respect to the duty to
          provide reasonable accommodation; limits on the categories of persons
          protected; limits on the areas of life covered; the exclusion of particular
          categories of state and non-state actors; the relative inaccessibility and
          cost of enforcement for individuals;




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         Disability services law – particularly with respect to the lack of compliance
          with the principles and objectives of the legislation; the lack of remedies for
          violations; and the lack of entitlement to essential support services;

         Laws and regulations relating to the built environment – particularly with
          respect to public infrastructure, residential dwellings, and in relation to
          emergency egress;

         Guardianship and administration laws – particularly with respect to the
          absence or ineffectiveness of procedural safeguards; the failure to
          implement in some cases the principle of the least restrictive alternative;
          and the failure to ensure the effective promotion and support of
          alternatives to substitute decision-making;

         Mental health laws – particularly with respect to the absence or
          ineffectiveness of procedural safeguards for compulsory treatment, the
          failure to implement in some cases the principle of the least restrictive
          alternative; and the failure to ensure the effective promotion and support of
          alternatives to compulsory treatment;

         Child protection laws – particularly with respect to the failure to provide
          adequate protection and support for children with disability, and
          discriminatory practices in relation to parents with disability;

         Migration law – the discriminatory restrictions on persons with disability
          migrating to Australia, and the denial or restriction of social security
          benefits and support services to migrants with disability;

         Critical levels of unmet demand for essential support services, including
          personal care, daily living support, accommodation, therapy, aids and
          appliances.

7.7   In light of these and other challenges, informants called upon the Australian
      Government to undertake a national audit of laws, policies and programs in
      relation to persons with disability immediately following Australia’s ratification
      of the CRPD. It was noted that there has not been a high level review of this
      nature since the Handicapped Programs Review of 1982-1986, which
      followed Australia’s observance of International Year of Disabled Persons in
      1981. It was strongly argued that the ratification of the CRPD necessitated
      such a high level review, and that it would provide the basis for the
      formulation of a national action plan to ensure the realisation of CRPD rights.
      It was also argued that such a review would result in the reinvigoration of, and
      recommitment to, a disability rights agenda across all sectors of the
      community, following an extended period of stagnation and regression.

      National Office of Disability Policy Coordination

7.8   Informants noted that Article 33 of the CRPD requires State Parties to
      designate one or more focal points and coordination mechanisms within
      government to facilitate national CRPD implementation.

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7.9    To fulfil this obligation, informants called upon the Australian Government to
       establish a National Office of Disability Policy Coordination within the
       Department of Prime Minister and Cabinet, which would operate under a high-
       level Commissioner for Disability Policy Coordination.

       National human rights action plan for persons with disability

7.10   Informants viewed the development of a recurring national human rights
       action plan for persons with disability as a key outcome of the proposed
       national audit of laws, policies and programs in relation to persons with
       disability, and its implementation and monitoring as a key function of the
       National Office of Disability Policy Coordination, and the Commissioner for
       Disability Policy Coordination.

7.11   Some key initial priorities were proposed for such an action plan. They
       included:

          harmonisation and enhancement of the availability and standard of
           education for persons who are Deaf across Australia, including in
           particular, in relation to the availability of tuition in Auslan, and Auslan
           tuition for Deaf students;

          portability and mutual recognition of assistive technology, aids and
           appliances, and disability support services across Australian jurisdictions;

          Increased employment participation by persons with disability in the public
           sector;

          Access to justice initiatives, particularly to reduce the over-representation
           of persons with disability in the criminal and juvenile justice systems.

       National program of disability rights defenders

7.12   Informants noted that human rights are only meaningful if they are fulfilled and
       enforced.

7.13   In this respect, informants suggested that it is essential that CRPD ratification
       be accompanied by major enhancements to the National Disability Advocacy
       Program and the National Disability Discrimination Legal Service Network.
       This will ensure that persons with disability have access to affordable support,
       where needed, to assert and enforce their human rights.

       Representative advice

7.14   Informants noted that the CRPD places major emphasis on the participation of
       persons with disability and representative organisations for persons with
       disability in policy development, implementation and monitoring.




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7.15   In this respect, informants viewed the establishment or enhancement of
       representative consultative mechanisms as a key priority for CRPD
       implementation. Key measures identified included:

          composition of government and independent advisory and consultative
           bodies in relation to disability policy by persons with disability drawn from
           representative organisations, who are accountable to a grass roots
           constituency;

          the establishment or enhancement of systematic and/or structural linkages
           (such as advisory committee and consultative structures) between
           HREOC and the proposed National Office of Disability Policy Coordination
           and representative organisations for persons with disability.

          Recognition of the vital role of existing representative organisations, who
           are accountable to a grass-roots constituency, such as those which
           participated in the roundtable consultations (see Appendix 1).




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