International context

United Nations Convention on the Rights of Persons with Disabilities

2.4          TheCRPD was the first binding international human rights instrument to explicitly address disability. Australia was an active participant and leader in its development, contributing greatly to the negotiations of the text of the Convention.[2] Australia was also one of the original signatories when it opened for signature on 30 March 2007.[3] Australia ratified the CRPD in July 2008 and the Optional Protocol in 2009. The CRPD entered into force for Australia on 16 August 2008,[4] and the Optional Protocol in 2009.[5] The CRPD consolidates existing international human rights obligations and clarifies their application to persons with disabilities.[6] It does not create new rights.

2.5          In addition to the general principles and obligations contained in the CRPD,[7] it is art 12, ‘Equal recognition before the law’, that is of central importance in this Inquiry. It underpins the ability of persons with disability to achieve many of the other rights in the Convention. It recognises the right of persons with disability to enjoy legal capacity ‘on an equal basis with others in all aspects of life’ and contains five paragraphs:

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure 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 safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.[8]

2.6          By ratifying the CRPD, Australia accepted the obligations to recognise that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life, and to take appropriate measures to provide persons with disability access to the support they may require in exercising their legal capacity.

2.7          Such international instruments do not become part of Australian law until incorporated into domestic law by statute.[9] However, as noted by the High Court in Minister for Immigration and Ethnic Affairs v Teoh, a convention can still assist with the interpretation of domestic law:

The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law.[10]

2.8          Even when an international convention has been incorporated into domestic law, its beneficial impact cannot be assumed. Adam Johnston observed that ‘the level of adherence and/or enforcement can rely on many factors’:

The first of these can be political willingness, reflected in the resourcing of relevant agencies. Domestic cultural norms can be important and the broad terms of many conventions can leave much up to an individual reader’s interpretation as to what an Article requires. Judicial views, the lobbying of interest groups and the public credibility of international institutions can also play their part.[11]

2.9          An added complexity with respect to the implementation of the CRPD in Australia is that guardianship and administration issues rest in state and territory law. As the ACT Disability, Aged and Carer Advocacy Service (ADACAS) observed:

The realities of the Australian federal system are going to create significant challenges for reform, particularly in the nexus between Commonwealth and state law.[12]

2.10       While implementation is clearly a multifaceted challenge, a document like the CRPD can both reflect and propel shifts in thinking. Family Planning NSW commented that the CRPD is ‘a powerful statement of what Australia and the world believe are the fundamental rights of people with disability’;[13] and ADACAS said that the CRPD ‘represents a cultural, identity and legal shift’.[14]

2.11       The CRPD reflects a ‘social’ model of disability, which describes disability in terms of the interaction between a person’s disability and the external world. As the Preamble of the CRPD states:

Disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.[15]

2.12       Such an approach is in contrast to a ‘medical’ approach, in which a diagnosis or categorisation of condition leads to particular consequences for individuals—for example, the imposition of guardianship.[16]

2.13       The Office of the Public Advocate (Qld) said that the CRPD incorporates ‘a contemporary approach to disability’:

  • recognising that disability is an evolving concept and that disability results from the interaction between people with impairments and their surroundings as a result of attitudinal and environmental barriers;

  • the right and capacity of people with disability to make valued contributions to their communities; and

  • recognising that all categories of rights apply to people with disability, who should therefore be supported to exercise those rights.[17]

2.14       As Professor Gwynnyth Llewellyn of the Centre for Disability Research and Policy, University of Sydney, submitted: ‘defining disability as an interaction means that “disability” is not an attribute of the person’.[18]

2.15       In addition to the general principles and obligations contained in the CRPD,[19] art 12 underpins the ability of persons with disability to achieve many of the other rights under the Convention. It recognises the right of persons with disability to enjoy legal capacity ‘on an equal basis with others in all aspects of life’.[20] Article 12 was of central importance to this Inquiry.

2.16       By ratifying the CRPD, Australia accepted the obligation to recognise that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life and to take appropriate measures to provide persons with disability access to the support they may require in exercising their legal capacity. The CRPD also requires that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse.[21]

Other international instruments

2.17       In addition to the CRPD, there are other international instruments of relevance to this Inquiry. The Universal Declaration of Human Rights affirms the inherent dignity and the equal and inalienable rights of all people and sets as a common standard the protection of these rights by the rule of law.[22] While the International Covenant on Civil and Political Rights (ICCPR) makes no specific reference to persons with disability, it enshrines rights to life, physical integrity, liberty and security of the person, equality before the law and non-discrimination.[23] In addition, the International Covenant on Economic, Social and Cultural Rights protects the right to work, social security, family life, health, education and participation in cultural life;[24] and the Convention on the Rights of the Child refers specifically to disability.[25]

2.18       The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT)[26] may also be relevant, as there have been suggestions that the use of restrictive practices with respect to persons with disability might contravene the CAT.[27]

2.19       There are also a number of international instruments that specifically protect the rights of women[28] and Indigenous peoples,[29] which are of relevance in considering intersectional discrimination. All of these instruments are reflected in the articles of the CRPD.