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3 Sept 2013 CRPD 10th session - Rosemary Kayess

On behalf of the Australian Civil Society Parallel Report Group Delegation, we would like to thank the distinguished committee members for this opportunity to present this statement.  This morning, my colleague Therese Sands and myself will present this opening statement.

As committee members are aware, Australia is a wealthy country where many of its citizens enjoy their human rights and a high standard of living.  Australia is ranked second on the UNDP Human Development rankings.

However, Australians with disability do not enjoy the same high standard of living, or the same respect for human rights.  For employment participation of people with disability, Australia is ranked 21 out of the 29 member countries of the OECD.  Australia has the highest level of disability poverty in the OECD, with 45% of people with disability in Australia living near or below the poverty line.

These figures do not highlight the extreme poverty and disadvantage experienced by Aboriginal and Torres Strait Island communities where rates of disability are twice that of the general population.

It is for this reason that we argue that Australia should be held to the highest possible standards with regard to its CRPD obligations. We argue that the bar should be set high for Australia because as a nation we are better placed than many other Member States to meet the needs of people with disability and realise their human rights. 

We acknowledge the positive reforms that have been initiated by Australia since ratification of the CRPD in 2008. In particular we acknowledge the development and the initial launch of the National Disability Insurance Scheme, known as DisabilityCare Australia. We welcome the focus of this Scheme on providing for people with disability to have control over their own funding so that they can choose the disability supports they need to live more inclusive and participatory lives in the community. There is no doubt that this is one of the most significant social reforms undertaken by Australia in generations.

However, DisabilityCare Australia is only focused on the provision of disability supports.  For people with disability to achieve inclusion and full participation in all areas of life, it is essential that there is a parallel commitment to comprehensive, whole of government legislative and policy reform and implementation.

In this regard, it is critical that a commitment is made by Australia to resource its National Disability Strategy and establish transparent reporting and accountability mechanisms.

It is also critical that Australia incorporates all its human rights obligations, including the CRPD into domestic law.  Current human rights protections are fragmented.  For example the Disability Discrimination Act has significant limitations.  It must be strengthened to address intersectional discrimination; and vilification and disability hate crimes.  It must take the onus off individuals with disability making complaints and often risking having costs awarded against them.   It must address systemic discrimination by allowing representative complaints by DPOs and other interested stakeholders, including the Australian Human Rights Commission.

Without comprehensive, whole of government legislative, policy reform and implementation, human rights violations that are occurring against people with disability in Australia will continue.

We acknowledge that Australia has implemented reform measures to address a number of critical human rights violations; however we hold a number of concerns regarding these measures.  In particular, we draw the attention of the Committee to the following:

  • Australia must withdraw its Interpretative Declaration in relation to article 12; and as a matter of priority undertake a comprehensive audit of Commonwealth, State and Territory laws, policies and administrative arrangements to address the current denial of legal capacity.

The current review into equal recognition before the law only considers Commonwealth laws and legal frameworks, but does not address the State and Territory financial management, substitute decision-making and mental health laws. It is also not clear if the interpretative declaration will be a limiting factor in this review.

  • Australia must establish a nationally consistent legislative and administrative framework that protects people with disability from restrictive practices, including the prohibition of and criminal sanctions for particular behaviour modification practices. 

The current proposal for a National Framework focuses on reducing rather than eliminating restrictive practices; and only focuses on disability services, rather than a comprehensive protection mechanism to cover other areas such as mental health facilities, schools and hospitals.

  • Australia must end the unwarranted use of prisons for the management of unconvicted people with disability, with a focus on Aboriginal and Torres Strait Islander people with disability, by establishing legislative, administrative and support frameworks that comply with the CRPD. 

The current approach by Australia to this issue, is to build Disability Justice Centres and highly restrictive Forensic Disability Services that do not comply with the CRPD.

  • Australia must develop and enact national uniform legislation prohibiting, except where there is a serious threat to life or health, the sterilisation of children, regardless of whether they have disability and adults with disability in the absence of their prior, fully informed and free consent.  

Key recommendations from the recent Senate Inquiry into this issue, if accepted by Australia would still allow for the forced sterilisation of children and adults with disability.

  • Australia must develop and implement a national framework for the closure of all residential institutions accommodating people with disability, including those operated by non-government and private sectors, and allocate and provide the resources necessary for people to move to individualised community based housing and support options.

There are many people with disability still living in institutions in Australia. It is unclear how DisabilityCare Australia will assist people who currently live in institutions to transition into genuine community living arrangements when there is a lack of appropriate, accessible and affordable housing options in the community.  There have been a number of institutional redevelopments and initiatives that replicate and continue institutional living arrangements. 

  • Australia must implement the Supported Wage System as the single national wage assessment tool for people with disability who are unable to work at the productive levels required for workers under industrial agreements.  People with disability must receive equitable and fair remuneration for their work, and receive the supports they need to move from segregated to open employment.

Employees with disability in segregated employment are still being paid wages based on a wage assessment tool that the High Court of Australia found discriminatory. The Australian Government is currently planning to seek an exemption under the Disability Discrimination Act to continue to use this wage assessment tool until alternative, unspecified arrangements can be put into place. This effectively means that people with disability in this position will have to waive their right to equal pay for the duration of the exemption.

There is a comprehensive analysis of these and many other human rights issues in our Parallel Report, Disability Rights Now, which has been provided to Committee members. This report is based on extensive consultations with people with disability and their representative and advocacy organisations throughout Australia. It has been endorsed by over 80 organisations.

These issues have also been summarised in our submission and factsheets for the 9th session, and in our response to the List of Issues for Australia for the 10th session. We encourage distinguished committee members to use these documents during this review, and to meet with us to clarify any issues.

As the Committee may be aware Australia is currently in the lead up to a federal election and the government is in caretaker mode. Whilst this places some restrictions on members of the government delegation from committing to future actions or decisions, it does not mean the Government delegation can avoid an open discussion of actions that have already been taken.

Our civil society delegation urges the Committee to make strong recommendations to Australia in its concluding observations so that the incoming government is held to account for the comprehensive legislative, policy reform and implementation required to end human rights violations.

Our delegation welcomes any questions Committee members may have on this material. 

Thank you very much.