Disability and human rights
Disability rights are human rights.
Human rights are fundamental rights and freedoms that are intrinsic to every person by virtue of their status as a human being.
In this sense, human rights are said to be ‘inalienable’ because they can neither be given to a person, nor can they be taken away from them.
Human rights are universal norms in the sense that they are recognised by the international community as intrinsic to every person irrespective of their national, cultural, political, geographic, social, religious or temporal context and any other personal characteristics, such as gender, race, sexuality, age, or disability.
They are norms applicable to all persons, at all times, in all societies. Of course, this does not mean that human rights are not violated. However, the violation of a human right denies a person the ability to enjoy or attain the right. The violation does not disentitle the person to the respect, protection and fulfilment of the right.
PWDA is committed to human rights and believes human rights are for everyone, regardless of race, religion, ethnicity, indigeneity, disability, age, displacement, caste, gender, gender identity, sexuality, sexual orientation, poverty, class or socio-economic status.
Governments have a fundamental responsibility to avoid human right violations and to immediately remedy such violations when they do occur.
Human rights violations
Virtually every Australian with disability encounters human right violations at some point in their lives and many experience human right violations on a daily basis.
People with disability are subject to multiple and aggravated forms of human rights violation, including the neglect of their most basic survival related needs. These human rights violations do not only occur in far off places that lack enlightened legislation and policies or the resources needed to meet basic needs. They occur every day, in every region, of every State and Territory in Australia.
In the light of the rights set out in CRPD, the following sections provide some key examples of current human rights violations experienced by people with disability. Please note that this list is not complete.
Freedom of expression and opinion and access to information
Many people with disability lack awareness and knowledge of their rights or where to go if they do recognise their rights have been denied. For people with cognitive impairments (developmental disability, acquired and organic brain impairment, psychosocial disability, dementia, neurological impairment such as Autism Spectrum Disorder) this is a particular problem. The barriers to ‘knowledge of rights’ include:
- poorer education opportunities and outcomes for people with disability
- limited or no accessible information otherwise available to their non-disabled peers about rights and how to use them
- limited or no alternative and augmentative communication systems to communicate with others
- limited access to independent advocacy services and support
- lack of control over their own lives and alternative choices
- no national, comprehensive approach to seek the voices of children and young people with disability or to ensure that they are able to access information of benefit to children and young people.
Equal recognition before the law and access to justice
Australian law and subsequent institutional mechanisms for dealing with complaints do not sufficiently protect or promote the human rights of people with disability:
- Complaint handling agencies are often inaccessible for people with disability. Barriers include structural and physical access barriers, information and complaint procedures in inaccessible formats (e.g. complaints to be provided in writing) and centralised agencies with few outreach mechanisms, therefore placing a heavy reliance on the complainant being able to come to them when they lack the means to do so.
- The human rights of persons with disability expressed by CRPD are not comprehensively incorporated into Australian domestic law and therefore remain unattainable.
Overwhelming evidence demonstrates that people with disability living in low cost housing options such as licensed and unlicensed boarding houses are not afforded appropriate protections from abuse, neglect and exploitation.
Freedom from exploitation, violence and abuse
Substantial national (and international) research provides evidence that people with disability are over-represented as victims of all forms of abuse and neglect. Abuse relates to physical, sexual, psychological, financial, legal/civil and systemic abuse as well as constraints and restrictive practices. As for neglect, it can be physical, emotional, passive or wilful.
Due to increased vulnerability, people with cognitive impairment are even more exposed to abuse and neglect than other groups of people with disability. The over-representation of people with disability as victims of abuse and neglect has been particularly reported in relation to those living in supported accommodation where the perpetrators commonly are service providers, other service users or visitors.
Abuse and neglect against people with disability and particularly against people with cognitive impairments, often goes undetected, unreported, non-investigated, non-prosecuted and unpunished. The successful detection, investigation and prosecution of abuse and neglect of people with cognitive impairment requires, in many instances, a particular value-base, expertise and practice that is simply not present or capable of being generated, in mainstream law enforcement agencies.
Australian social policy, legal and political systems fail to view children and young people with disability as children and young people first. The focus is on disability-related needs and specialist disability related interventions to the exclusion of child related needs such as emotional and developmental well-being. Thus, children and young people with disability are not generally or as a matter of course, included when developing or examining policies and programs on issues or concerns relating to children and young people.
The disability service system has generally failed to develop appropriate service models and practice frameworks that meet the needs of children. Unlike the child protection system, practices such as planning to restore the child to their family, planning for permanent alternative placement and recognising the developmental needs and interests of the child are not universally applied in the disability service system. A major factor in this is that disability service legislation and service standards are adult focused and do not contain specific provisions for children. This reinforces the focus of services on the disability of the child with an emphasis on treatments, medication and behaviour management, rather than on their developmental needs and interests.
Non-therapeutic sterilisation of people with disability is a particularly egregious form of human rights abuse and one that impacts particularly on girls and women with disability. There is substantial anecdotal evidence that unlawful sterilisation of children and young people with disability, mostly girls continues to occur in the absence of medical needs such as diseases of the reproductive tract. Sterilisation is an irreversible medical procedure with lifelong physical, psychological and social consequences.
Parents with disability, particularly women and particularly those with intellectual disability and psychosocial disability are significantly over represented in the child protection system. The prejudicial assumptions about the parenting capacity of people with disability means that disability is constructed as a risk factor for abuse and neglect rather than as an indicator of possible support needs.
However, evidence provided at the NSW Legislative Council Inquiry into Disability Services and the Inquiry into Child Protection Services demonstrate that when family support programs and sufficient community-based mental health services are provided to parents with disability, the outcomes for their children are not significantly different from other children.
The over-representation of women with disability in part-time, casual and lower paying jobs or their sole reliance on government payments means that women with disability are one of the poorest groups in Australia. There is a connection between poverty and health, well-being and the exacerbation of impairments and conditions. Financial hardship impacts on obtaining quality housing, skills development and meeting the additional costs associated with disability, such as accessible transport, personal care needs, specialist aids and equipment and medical care.
Women with disability report difficulty accessing mainstream health services such as preventative breast and cervical screening, due to inadequate policy frameworks which do not include women with disability as target groups, lack of data on women with disability and the prevalence of cancers, the physical inappropriateness of the medical equipment used, costs (even if a doctor bulk bills there costs associated with accessible transport and carer costs can be prohibitive) and the manner in which these procedures are performed.
Women with disability experience restrictions in realising their rights to full reproductive freedom (the right to sex education, to informed consent regarding birth control, to terminate a pregnancy, to choose to be a parent and to access reproductive information, resources, medical care, services and support).
Women with disability are at greater risk of physical, sexual, and emotional or psychological abuse as well as to other forms of violence, such as institutional violence, chemical restraint, drug use, control of reproduction, medical exploitation, isolation, humiliation and harassment. Abuse and violence can be perpetrated by intimate partner as well as relatives, caregivers, co-patients, residential and institutional staff, service providers, strangers, institutions and social structures.
Aboriginal and Torres Strait Islander people with disability experience the denial of the most fundamental of human rights, such as access to adequate shelter, education, employment, health. They are significantly under-represented on a population basis in beneficial social programs due to a number of policy and structural failures. These include services that are poorly targeted and located, as well as culturally insensitive or inappropriate services.
Aboriginal people with disability are more likely to go to jail for a minor crime than others and they are more likely to be involved in the criminal justice system because of the negative attitudes of the police. In goal, they generally experience abuse and neglect, including the lack of appropriate care for those with psychosocial disability.
Australia’s migration laws continue to violate the human rights of people with disability. The Migration Act 1958 is exempt from the discrimination provisions of the Disability Discrimination Act 1992. Potential migrants and refugees to Australia are subject to a health assessment in order to determine their eligibility. The assumed future costs associated with health condition or disability is taken into account as part of the assessment procedure. There is no assessment of the positive contributions people with disability can and do make to our communities.
The health test means that migrants and refugees with disability are routinely refused entry to Australia as a result of an assessment of the potential health costs associated with their illness or disability. It also means that many families supporting people with disability make a difficult decision to leave behind a family member in order to build a life in Australia. In cases involving humanitarian entrants, these family members with disability will remain in extremely vulnerable situations.
Some refugees and migrants are granted exemptions under the current arrangements. However, waivers are determined through a decision-making process which is inconsistent, can be arbitrary in nature and therefore potentially unfair.
Access to housing is a fundamental human need and a core element of the human right to an adequate standard of living. In order to effectively exercise their housing rights, many persons with disability require social support services to provide personal care, domestic services and living skill support. Access to social services is also a core element of the human right to an adequate standard of living.
However, people with disability have been largely invisible in efforts to implement and monitor these rights at both the national and international levels. Human right perspectives have had very little, if any, impact on housing and housing and support systems upon which people with disability depend and indeed, in some cases these systems actually violate human rights.
For example, building regulation has failed to ensure that domestic housing is designed and built in ways that accommodate the accessibility requirements of people with physical impairments, while specialist housing and support is often provided in ways that deprive people with disability of the right to live independently and be included in the general community.
One of the most pervasive human rights abuses experienced by people with disability is their segregation and isolation from the community in congregate care facilities.
Sometimes it is argued that people with disability ‘choose’ to live in segregated accommodation and that Governments must allow for this ‘choice’ on the basis of the need to respect personal autonomy. The real facts rarely reflect such claims. People with disability have long been obliged to live in segregated environments because it is the only way they can receive essential support services. Tragically, in many situations the individuals concerned become institutionalised by years of segregated living.
It is sometimes argued that housing options that congregate people with disability in significant numbers are justifiable because other people in the community choose to live this way, such as elderly people. This claim is unfounded. Unlike people without disability, people with disability are not given the option of living with their non-disabled peers in accommodation of their choice. For many people with disability, their only option is a segregated simulation of the accommodation choices available to people without disability, which violates normal living patterns (such as young people with disability sharing residential aged care facilities and retirement villages).
The involuntariness of such detention includes the inability of the person to choose an alternative place, the inability to choose with whom they will live and the inevitable suppression of personal autonomy to externally imposed rules. Typically, such facilities also restrict, or entirely prevent, the person from leaving the facility. Although, no law compels people with disability to live in such environments, they have no alternative but to do so if they are to have access to essential support services.
Segregation ultimately has its roots in harmful social beliefs about the inferiority of persons and their ‘otherness’, and this is offensive to human dignity and rights. This is true irrespective of the ‘quality’ of any facilities or services that may be provided in the segregated setting.
Other human rights violations
People with disability also experience human rights violations in many other key aspects of their life such as:
- Education and Training
- Access to services
- Health access
- Access to premises
- Voting access
- Public transport access
- Access to recreational and social activities
- Expression of sexuality
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